FEDERAL COURT OF AUSTRALIA

McDonald v Colbran [2019] FCA 1937

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ interlocutory applications dated 29 March 2019 and 1 October 2019 are dismissed.

2.    The application for review of the respondent’s decision made on 15 February 2019 is dismissed.

3.    The applicants’ application for leave for the documents lodged with the Court on 11 February 2019 to be accepted for filing is dismissed.

4.    The applicants are to pay the respondent’s costs, fixed in the sum of $2,666.95.

5.    The applicants may file and serve an application to vary or revoke the order in [4], such application to be filed and served on or before 6 December 2019.

6.    Any application made in accordance with the order in [5] is to be determined on the papers.

7.    On or before 6 December 2019, the applicants may file and serve an affidavit deposing to whether they oppose the application for an order in terms set out in [3.2] of the affidavit of Tarley Leideritz affirmed on 27 November 2019 (the stay application).

8.    In the event that the applicants or either of them file an affidavit in accordance with the order in [7]:

(a)    the stay application is to be set down for a hearing on a date to be fixed, not earlier than 28 January 2020;

(b)    pending the determination of the stay application, any documents lodged for filing by the applicants or either of them are to be referred to the presiding judge for a direction as to whether the documents should be accepted for filing.

9.    The order in [8] does not apply to documents comprising an appeal or application for leave to appeal from any judgment or order in this proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for judicial review of a decision of a National Judicial Registrar of this Court.

2    The applicants, Francis McDonald and Rhoda McDonald are husband and wife. Mr McDonald appeared self-represented. He advanced submissions and adduced evidence on his own behalf, and, with the leave of the Court, on behalf of his wife. The position of Mrs McDonald will be considered later in these reasons. A reference in these reasons to Mr McDonald or “the applicant” should otherwise be understood as a reference to both applicants.

The judicial review application

3    The Registrar refused to accept for filing documents titled “summons” and “statement of claim” lodged by Mr McDonald on 11 February 2019 (the 2019 documents). By the 2019 documents, Mr McDonald sought to commence an action in which he alleged, among other things, that a judgment of this Court was obtained by fraud. The judgment is that given by Besanko J in action SAD 178 of 2010 (the 2010 proceedings).

4    Besanko J dismissed the 2010 proceedings on the basis that they could not be maintained, either by reason of res judicata, issue estoppel, Anshun estoppel or as an abuse of process by way of re litigation: McDonald v State of South Australia [2011] FCA 297. An application for leave to appeal from that judgment was filed on 24 October 2017, more than six years after it was delivered: action SAD 299 of 2017. The application for leave to appeal was discontinued in May 2018.

5    Rule 2.26 of the Federal Court Rules 2011 (Cth) provides that a Registrar may refuse to accept a document for filing if the Registrar is satisfied that the document is an abuse of process of the Court or is frivolous or vexatious either on the face of the document or by reference to any document already filed or submitted for filing with it.

6    In a letter to the applicants dated 15 February 2019, the Registrar said:

On the face of the documents presented for filing, I am satisfied that each is an abuse of process. They are also vexatious. I refuse to accept the documents for filing and return them to you.

If you disagree with a decision by a Registrar to refuse to accept your documents for filing, you should take appropriate steps to have this decision reviewed.

7    The Registrar’s decision to refuse to accept the documents for filing is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; (2010) 268 ALR 222 at [49] (Marshall, Cowdroy and Buchanan JJ); Rahman v Hedge [2012] FCA 68 (Perram J); Reaper v Luxton [2015] FCA 430 (Tracey J).

8    The Registrar filed a submitting appearance, subject to being heard on costs.

9    There are three other applications before the Court.

Leave application

10    On 10 October 2017, Kerr J made orders in SAD 246 of 2017, an action in which Mr and Mrs McDonald joined or purported to join the Federal Court of Australia as the respondent. In that proceeding Mr and Mrs McDonald made an application for judicial review of a direction I gave in 2017 pursuant to r 1.37 of the Rules. The effect of that direction was that documents lodged by Mr and Mrs McDonald on 21 July 2017 (the 2017 documents) not be accepted for filing. Registrar Colbran acted in accordance with that direction. By the 2017 documents, the applicants had sought to commence an application for orders that the judgment of Besanko J in the 2010 proceedings be set aside.

11    Kerr J dismissed the application in SAD 246 of 2017 on the basis that a direction given pursuant to r 1.37 of the Rules involved the exercise of judicial power such that the applicants’ claims could not be pursued by way of an application for judicial review in this Court (at [73]). His Honour made orders in the following terms:

1.    The Applicants’ originating application for judicial review is dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or the inherent jurisdiction of the Court.

2.    Any further originating application by either of the Applicants that seeks to set aside the decision of Besanko J in McDonald v South Australia [2011] FCA 297 not be accepted for filing without leave of the Court.

12    The effect of the order in [2] is that the 2019 documents could not be accepted for filing without the leave of the Court if the proposed proceeding was in the nature of an originating application to set aside the decision of Besanko J. The order was not referred to by the Registrar in her reasons for refusing to accept the 2019 documents for filing and does not appear to have been relied upon as an alternate basis for rejecting the documents.

13    At the first case management hearing of this matter on 2 April 2019, Mr McDonald appeared to be unaware of both the existence and the effect of the order in [2]. In the circumstances, I permitted him to make an application within this action for leave for the 2019 documents to be accepted for filing. I did so because it appeared that Mr McDonald could not succeed on his application for judicial review of the Registrar’s decision because the proceeding he hoped to commence by filing the 2019 documents may be a proceeding that could not be accepted for filing without the leave of the Court (which leave he did not have). Whilst expressed in terms of a requirement for leave to accept documents for filing, a practical effect of Kerr J’s order was to erect a requirement for leave to be granted before Mr McDonald could commence a proceeding of the kind described in the order.

14    Notwithstanding the order of Kerr J, it is Mr McDonald’s position that he does not require leave to commence the proceeding because it is an application to set aside a perfected judgment of this Court on the basis that it was procured by fraud. By an interlocutory application dated 5 April 2019 he nonetheless accepted the opportunity to make an application for leave, to the extent that it was required. He seeks an alternate order that the 2019 documents be accepted for filing “based on” the High Court decision in Clone Pty Ltd v Players Pty Ltd (in liq) (2018) 264 CLR 165 and another case routinely applying the same principles: see McDonald v State of South Australia [2018] SASC 41.

Recusal applications

15    The two further applications before the Court each seek an order that I recuse myself on grounds that relate inter alia to my previous direction under r 1.37 of the Rules in respect of the 2017 documents. The principal contention on those applications is that I am purporting to judicially review my own decision in relation to the 2017 documents and that I have otherwise prejudged the issues arising in this action, having given a direction in 2017 allegedly in respect of the same or similar subject matter.

16    For the reasons that follow, I have concluded that:

(1)    the recusal applications should be dismissed;

(2)    the application for judicial review of the Registrar’s decision should be dismissed; and

(3)    there should be no grant of leave for the 2019 documents to be accepted for filing.

17    It is necessary to traverse a considerable amount of background in order to explain why the recusal applications should be dismissed. Whilst those applications have been considered and determined first, I will defer explaining why they have been dismissed until the end of these written reasons.

THE 2019 DOCUMENTS

18    The 2019 documents comprise a document titled “summons” consisting of three pages, purportedly prepared in accordance with r 34.12(2) of the Rules and a statement of claim consisting of 114 pages. They were accompanied by two letters addressed to the Registrar. One of the letters relates to filing fees. It need not be referred to again.

19    The other letter advances arguments as to why the 2019 documents should be accepted for filing. It refers to the judgment of the High Court in Clone. In that case, the High Court dealt with an application to set aside a perfected order of the Supreme Court of South Australia on the alleged ground of serious malpractice of a party’s legal representative. The letter extracts this passage from a summary published by the High Court on the day that judgment in Clone was delivered:

Today the High Court unanimously allowed two appeals from the Full Court of the Supreme Court of South Australia. The Court held that the equitable power of the Supreme Court to set aside its own perfected judgment required actual fraud by the party who succeeded at trial and did not extend to misconduct not amounting to fraud. The Court also held that it was not a precondition to the exercise of the power that the party seeking to set aside the judgment exercised reasonable diligence to discover the fraud.

20    The letter went on to assert that the respondents in the proceedings before Besanko J and their legal advisers had made false statements to the Court and “fabricated evidence in Court documents” to procure judgment in the 2010 proceedings. It alleged that “new, fresh and compelling evidence” had “become available” since the delivery of judgment which revealed that the respondents to the 2010 proceedings and their legal advisers had engaged in “actual fraud, deceit and conduct analogous to fraud”. The letter purports to “remind” the Registrar that r 2.26 of the Rules is not “sufficient to dismiss the High Court’s decision”.

21    The summons enclosed with the letter employs the form to be used for the commencement of a criminal prosecution in this Court. The substantive proceeding sought to be commenced is not in the nature of a criminal prosecution. For the purposes of this proceeding I will treat the summons as a proposed originating application to commence a proceeding in accordance with r 8.01 of the Rules and I will refer to it as such. The proposed originating application states that the relief claimed in the proceeding is that set out at page 113 of the proposed statement of claim. The relief is in fact pleaded in Part 3 of that document under the heading “Remedies and ancillary remedies” at pages 112 – 114. The claim is confined to general damages, aggravated damages, exemplary damages, “non-pecuniary damages” and “such further or other relief as the Court seems fit”. There is no express application for an order setting aside the judgment given in the 2010 proceedings, although the remainder of the pleading makes Mr McDonald’s intention to seek such an order in the proposed proceeding abundantly clear, as do his written and oral submissions before me. I will proceed on the basis that the order setting aside the judgment may and (if leave be granted) will be sought under the general claim for “further or other relief as the Court seems fit”.

22    The proposed defendants named in the 2019 documents are not the same as the defendants in the 2010 proceedings. In the 2010 proceedings, the defendants were the State of South Australia and five individuals with whom Mr McDonald had dealings in his former work as a teacher (the 2010 individual defendants). The proposed defendants named in the 2019 documents are the Attorney-General for the State of South Australia, SAicorp (being a statutory corporation established for the provision of insurance to agents or instrumentalities of the Crown in right of South Australia), the Minister for Education, a Human Resources Manager employed within the Department of Education and two practising lawyers. For reasons that will be explained, I have concluded that serious allegations of fraud and malpractice made by Mr McDonald against the proposed respondents are entirely unfounded. In the circumstances, I consider it inappropriate to name the proposed individual respondents in these reasons. The fifth and sixth proposed respondents will be referred to as the first and second lawyers respectively. The fourth proposed respondent will be referred to as the HR Manager.

23    Until about 2003, Mr McDonald was employed as a teacher at Brighton Secondary School in South Australia and other public schools.

24    Among other things, the proposed statement of claim contains allegations that the respondents in the 2010 proceedings and their lawyers dishonestly concealed or fabricated evidence concerning the nature and identity of Mr McDonald’s former employer and the identity of the employer of the individual respondents. It alleges that if the true identity of the employer had come to light in those proceedings “an entirely different outcome would have flowed”.

25    The proposed statement of claim also contains an allegation of fraud and deceit affecting proceedings in the Supreme Court of South Australia in proceedings SCCIV 418 of 2004 (2004 proceedings). In that action, Anderson J upheld a contractual claim for damages commenced by Mr McDonald arising out of his employment: McDonald v State of South Australia [2008] SASC 134; 172 IR 256. Anderson J’s judgment was overturned on appeal State of South Australia v McDonald (2009) 104 SASR 344 (Doyle CJ, White and Kelly JJ). The High Court refused to grant special leave to appeal from the judgment of the Full Court: McDonald v The State of South Australia [2010] HCATrans 25.

26    The 2019 documents and the documents filed in this action proceed from the footing that proof that Mr McDonald’s former employer was a body corporate would have assisted him to succeed in the 2004 proceedings and the 2010 proceedings. In addition, Mr McDonald seeks to establish that certain individuals joined as defendants in the 2010 proceedings and other proceedings commenced by him were not employees of the Crown in right of South Australia but employees appointed by the same Minister under the Education Act 1972 (SA) and so do not have the benefit of statutory immunity from suit that might otherwise arise under s 74 of the formerly named Public Sector Management Act 1995 (SA) (PSM Act). The applicants’ documents and submissions proceed from the assumption that by making good these contentions, the issues between Mr McDonald and his employer and the individual respondents may be tried in a fresh proceeding or re agitated in the reopened 2010 proceedings as the case may be. This is not an exhaustive statement of the proposed claims.

EVIDENCE, SUBMISSIONS AND HEARINGS

27    The Court has before it an affidavit of Mrs McDonald by which she adopts all of the oral and written submissions of Mr McDonald.

28    In this proceeding, Mr McDonald has sworn and filed six affidavits. To the extent that the affidavits contain material in the nature of submissions, they have been read as such. The affidavits sworn on 29 March 2019, 5 April 2019, 29 April 2019, 9 August 2019, 19 August 2019 and 1 October 2019 will be referred to as the first to sixth affidavits respectively.

29    Also before the Court are written submissions dated 1 April 2019 (first April submissions), 15 April 2019 (second April submissions) and 19 August 2019 (August submissions). The second April submissions were handed up at the hearing of 15 April and are marked Exhibit 3.

30    The other evidentiary material before the Court consists of a letter dated 26 July 2017 from the Registrar to Mr McDonald providing reasons for refusing to accept the 2017 documents for filing and attaching copies of those documents as returned to Mr McDonald (Exhibit 1), a USB containing the documents Mr McDonald has lodged for filing in the South Australia District Registry between 20 July 2017 and 15 February 2019 (Exhibit 2) and a letter dated 25 May 2017 to Mr McDonald from a person holding the title Office Manager to the Minister for Education and Child Development (Exhibit 4).

31    The originating application, the leave application and the first recusal application were heard on 15 April 2019. Judgment was reserved on 29 April 2019 following the receipt of further submissions. On 13 August 2019, I made an administrative order reopening argument for the purpose of receiving the fourth affidavit and written submissions in relation to it. Mr McDonald did not file written submissions in response to that order. Instead he filed the fifth affidavit, which has been read.

32    Argument was reopened again for the purpose of hearing a further application for an order that I be disqualified from determining any issue in the proceeding on grounds of actual and apprehended bias. More will be said about that aspect of the proceedings later in these reasons.

LEAVE REQUIRED

33    Mr McDonald’s written and oral submissions demonstrate some appreciation of the limited circumstances in which a perfected judgment of this Court may be set aside other than in the exercise of its appellate jurisdiction. Subject to what is said below, his submission that a perfected judgment may be set aside if obtained by actual fraud may generally be accepted. Ordinarily, an application invoking the Court’s equitable power to set aside its own perfected judgment on the basis of actual fraud may be brought without leave: Clone at [53].

34    It may also be accepted that the 2019 documents are a proposed action in which Mr McDonald seeks to have the judgment of Besanko J set aside on grounds of actual fraud and so appears to be an attempt to invoke the principles stated by the High Court in Clone. However, the circumstance that fraud is advanced as the reason for setting aside the earlier judgment does not provide a basis for ignoring the order of Kerr J made on 10 October 2017. That order was supported by reasons given by Kerr J which are not (indeed, cannot be) impugned by Mr McDonald in this proceeding. The requirement for leave imposed by Kerr J’s order is binding on both applicants. This Court, too, must observe it. The contention that leave is not required is rejected.

35    Rule 2.27(f) of the Rules provides that a document will not be accepted for filing if the Court has given a direction that the document not be accepted without the Court’s leave and leave has not been obtained. The reference to “the Court” in that Rule is to be understood as a reference to the Court comprised of a single justice. Accordingly, at least to the extent that the 2019 documents comprised an application to set Besanko J’s judgment aside (as Mr McDonald insists they are), the Registrar was bound by r 2.27(f) of the Rules not to accept them for filing irrespective of any view the Registrar might otherwise have formed as to whether the documents were an abuse of process or were frivolous or vexatious within the meaning of r 2.26. On the application for judicial review, remittal to the Registrar for reconsideration of the decision to reject the documents under r 2.26 would be futile if leave to commence the action was required but had not been granted.

36    The task of the Court on the application for leave is not to scrutinise the decision of the Registrar for error but to make its own assessment of the 2019 documents so as to determine whether leave should be granted for the documents to be accepted.

LEAVE REFUSED

37    In determining the application for leave, it is necessary to first examine whether the proposed action is, as a matter of substance, one that may properly be commenced in accordance with the principles stated by the High Court in Clone.

38    If the proposed action cannot be commenced in accordance with those principles, consideration should then be given as to whether there is any other basis upon which leave to commence the proceeding should be refused. A proper basis for the refusal of leave may arise if the Court is satisfied that the 2019 documents would be liable to be removed from the Court file as vexatious in accordance with r 6.01 of the Rules or if the proceeding would otherwise be liable to be struck out in the exercise of the Court’s implied or statutory powers to prevent an abuse of its processes.

The principles in Clone

39    The respondent in Clone had commenced two applications in the Supreme Court of South Australia in which it sought to set aside a judgment obtained by the appellant in earlier proceedings in the same court. The respondent alleged malpractice by the appellant’s legal practitioners during the course of the trial, specifically in relation to the non-disclosure of documentary evidence. One of the actions was brought within the same proceeding in which the impugned judgment was obtained. The other was commenced as a separate proceeding. The primary judge found that the non-disclosure of the document constituted serious malpractice by the appellant’s lawyers and ordered a new trial in relation to an issue potentially affected by the non-disclosure. The order for a new trial was upheld by a majority of the Full Court of the Supreme Court. The High Court reversed the judgment of the Full Court.

40    The following principles may be discerned from the reasons of the High Court insofar as they concerned that category of case in which actual fraud is alleged:

(1)    the power to set aside a perfected judgment by an original bill is a narrowly defined exception to the principle of finality (at [56]);

(2)    the appropriate procedure for seeking an order setting aside an earlier perfected judgment is by application in a new proceeding, and not by application in the proceeding in which the judgment was obtained (at [68)]);

(3)    it is necessary to demonstrate actual fraud. Proof of misconduct, accident, surprise, mistake or lack of frankness will not suffice (at [55] – [56]);

(4)    the party seeking to set aside the judgment on the ground of actual fraud need not demonstrate that he or she exercised reasonable diligence to discover the fraud in the course of the earlier proceeding, although a lack of diligence may inform the Court’s discretion as to whether relief should be granted (at [63] – [68]); and

(5)    whether or not the fraud (if proven) might have affected the outcome of the original proceedings is not a matter pre-conditioning the exercise of the power, but will be relevant to the exercise of the Court’s discretion (at [50]).

41    The High Court’s remarks in relation to the topics in [40(4)] and [40(5)] above are to be understood as obiter, as fraud of the kind necessary for setting aside the earlier judgment had not been established.

42    Whilst the High Court referred to other categories of case in which a perfected judgment may be set aside in the exercise of a court’s equitable powers, it was unnecessary for the Court to determine their limits. The present case does not concern those alternate categories.

43    This Court’s power to set aside its own perfected judgments in the exercise of its original jurisdiction may be sourced in ss 19, 22 and 23 of the Federal Court of Australia Act 1976 (Cth) and in r 39.05(b) of the Rules. The principles applicable in this Court are the same as those stated by the High Court in Clone in their application to courts of unlimited jurisdiction.

44    In Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 5) [2004] FCA 1262, French J summarised the authorities concerning the nature of the fraud that must be established in order to invoke the discretionary power to set the impugned judgment aside:

60    …  The circumstances in which a judgment can be set aside for fraud were considered by the Court of Appeal in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 by Kirby P, with whom Hope JA and Samuels JA agreed. That case involved an appeal from a decision of Young J striking out a statement of claim which sought an order that the verdict of a jury and a judgment previously entered pursuant to that verdict should be set aside on the ground that the verdict and judgment were procured by fraud. Kirby P set out the essential criteria for success in an action seeking to set aside a judgment on the basis of fraud. In summary they were as follows:

1.    The essence of the action is fraud and particulars of the fraud claimed must be exactly given and the allegations established by the strict proof which such a charge requires.

2.    It must be shown by the party asserting that the judgment was procured by fraud that there has been a new discovery of something material in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment.

3.    Mere suspicion of fraud raised by fresh facts later discovered will not be sufficient to secure relief.

4.    Although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud and although there may be exceptional cases where such proof of perjury would suffice, without more to warrant relief of this kind, the mere allegation or even the proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment.

5.    It must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge.

6.    The burden of establishing the components necessary to warrant the drastic step of setting aside a judgment allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly.

Kirby P said, at 539:

‘In summary [the applicant] must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.’

61    In Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234, the Full Court of the Federal Court also reviewed the general principles governing the equitable jurisdiction to set aside a judgment on the basis that it was obtained by fraud. In particular, reference was made, with apparent approval, to ‘the stringent principles established by the authorities to confine the jurisdiction’ which were summarised by Mr DM Gordon QC in Fraud or New Evidence as Grounds for Actions to Set Aside Judgments (1961) 77 LQR 358. Those principles set the following requirements:

   ‘(a)    evidence discovered since the trial;

(b)    evidence that could not have been found by the time of the trial by exercise of reasonable diligence;

(c)    evidence so material that its production at the trial would probably have affected the outcome and when the fraud charge consists of perjury, then:

(d)    the evidence must be so strong that it would reasonably be expected to be decisive at a rehearing, and if unanswered must have that result. (at 241)’

See also Magarditch v Australia and New Zealand Banking Group Ltd (1999) 17 ACLC 1275 and Pembroke School Incorporated v Human Rights and Equal Opportunity Commission [2002] FCA 1020.

45    In this case, whilst it is necessary to consider the proposed proceeding against the principles stated in Clone and Spalla, that is to be done in a context in which leave for the documents to be accepted for filing is being considered as a threshold requirement. On the leave application, the proposed proceeding is not to be assessed with a view to deciding the claims on their substantive merits. If leave were to be granted, the question of whether facts sufficient to justify the judgment being set aside have been proven to the requisite standard will be for the trial judge to decide. On the leave application, the merits of the action may nonetheless be considered for the purposes of identifying whether the allegations of fraud are bona fide and whether the evidence upon which Mr McDonald proposes to rely provides a sufficient prima facie foundation for the claims to justify the question proceeding to trial. The Court may also consider whether the proposed proceeding enjoys reasonable prospects of success such that it would not be liable to be struck out in the exercise of powers such as those conferred by r 6.01 of the Rules. It is also relevant to consider whether the allegations of actual fraud are pleaded with the clarity and degree of particularity ordinarily required in relation to allegations of that kind. Such allegations must be clearly pleaded and (at the trial stage) proved: Clone at [62].

The principle of finality

46    As has been said, the equitable jurisdiction of a court to set aside its own perfected judgment on the basis that the judgment was obtained by actual fraud represents a narrow exception to the principle of finality. That fundamental principle underlies the various legal doctrines upon which Besanko J relied in dismissing the originating application in the 2010 proceedings. It is convenient to extract his Honour’s summary of the principles and authorities, which I adopt:

Res judicata

36    The doctrine of res judicata operates to prevent parties from re-litigating causes of action which have already been the subject of a judicial decision. A party relying on the doctrine of res judicata must establish that a Court with the relevant jurisdiction has already given judgment on the cause of action raised in the later litigation. The claim or cause of action is said to have merged in the judgment and no longer to have an independent existence: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 (‘Anshun’). This doctrine operates only where the parties to the first action are the same as the parties to the second action: Ramsay v Pigram (1968) 118 CLR 271 at 276 (‘Ramsay v Pigram’). The parties must be suing or being sued in the same right or capacity: Leggott v Great Northern Railway Co (1876) 1 QBD 599. The parties will be considered to be the same where they share a privity of interest, defined by Sir Robert Megarry VC in Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 as ‘a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party’ (at 515). In Ramsay v Pigram, Barwick CJ said that to establish privity of interest ‘the privy must claim under or through the person of whom he is said to be a privy’: at 279.

Issue estoppel

37    Issue estoppel arises where a party, for the purpose of a claim or cause of action, alleges or denies the existence of facts which were necessarily decided by a prior judgment. That is, a party will be estopped from re-arguing questions of fact or law decided in a previous case, even though the cause of action in the subsequent case has not been determined, so long as the findings of fact or law were a necessary ingredient in the determination of the previous cause of action: Anshun at 597-8. Ordinarily issue estoppel will arise only in a subsequent action between the same parties, but in Arthur JS Hall & Co v Simons [2002] 1 AC 615 Lord Hoffman considered that issue estoppel may extend to situations where the parties to the subsequent proceeding are not the same as the parties to the earlier proceeding, but the circumstances are such as to bring the parties within the spirit of the rules (at 701).

Anshun estoppel

38    Parties are not permitted to litigate issues which could and should have been litigated in earlier proceedings between them: Henderson v Henderson (1843) 67 ER 313 (‘Henderson’); Anshun. In Henderson, Sir James Wigram VC said (at 320) that:

Where a given matter becomes the subject of litigation in and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

39    In Anshun the High Court said that where a matter relied on as a defence in a second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it, the party will be estopped from raising it as a defence in the second action: at 602. There must be a close connection between the subject matter of the first litigation and the second, such that it would be expected that the matter would have been raised in the first litigation.

40    In Spalla, French J (as his Honour then was) referred to Anshun estoppel as an analogical extension of the doctrines of res judicata and issue estoppel (at [59]).

Abuse of process by relitigation

41    The doctrines set out above have a number of technical requirements. The Court’s jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of is not limited to cases where those technical requirements can be made out: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ (‘Walton’); Rana v University of South Australia [2008] FCA 1903 at [43]. The operation of the doctrines of res judicata, issue estoppel and Anshun estoppel is subsumed into the Federal Court’s implied incidental power to prevent abuse of its processes: Spalla at [59]. Justice French said in Spalla (at [66]) that:

the doctrines of res judicata, issue estoppel, and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined.

In Walton Mason CJ, Deane and Dawson JJ said (at 393) that:

… proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

42    The power to strike out a claim is to be exercised sparingly and ‘upon an examination of the relevant circumstances of the particular case before the Court’: Spalla at [70].

43    In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (at 64,089) (‘Stenhouse’), Giles CJ set out a list of relevant matters in determining whether it would be an abuse of process if a party were allowed to litigate an issue already raised in previous proceedings:

(a)    the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary or an ultimate issue;

(b)    the opportunity available and taken to fully litigate the issue;

(c)    the terms and finality of the finding as to the issue;

(d)    the identity between the relevant issues in the two proceedings;

(e)    any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –

(f)    the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g)    an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

In Spalla, French J described this list as a non-exhaustive one (at [70]).

44    The parties need not necessarily be the same for the proceedings to be permanently stayed as an abuse of process.

45    In a case bearing some similarities to the present, R v Lessur-Millar (1990) 47 A Crim R 111, Lockhart J said (at 117-118):

For this Court to allow the present matter to proceed and to consider granting the relief sought by the applicant would be to lend its aid to a further investigation of the very matters which have been fully considered by judges at first instance and on appeal in New South Wales and, though a special leave application and not the hearing of a substantive appeal, by the High Court.

No fresh evidence of any probative kind has been placed before the Court additional to what was before the New South Wales courts.

It is vexatious and an abuse of process for a party, having sued unsuccessfully before the courts of New South Wales, to seek to agitate the very same issues and facts in this Court. The proceedings, remedies and parties are not precisely identical; but they are in all essential respects the same

46    There are a number of cases dealing with the category of abuse of process by relitigation. For present purposes it is sufficient for me to refer to SZJAB v Minister for Immigration (2008) 168 FCR 410 at 423 per French J and Rippon, in addition to the cases to which I have already referred.

Untenable claims

47    A claim or cause of action may be so obviously untenable that the continued pursuit of the claim or cause of action is vexatious or an abuse of process or both: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ; Cox v Journeaux [No 2] (1935) 52 CLR 713 at 720 per Dixon J (as his Honour then was).

Application of the principles

47    This is not an appeal from the judgment of Besanko J and accordingly it forms no part of the task of the Court to determine whether his Honour erred on the material before him. The question with which I am presently concerned is whether the proceeding sought to be commenced by the 2019 documents is reasonably capable of satisfying the requirements stated in Clone so as to justify the grant of leave to commence an action for an order that the judgment be set aside on the ground of actual fraud.

48    To understand the nature of the alleged fraud it is necessary to first explain why the 2010 proceedings were dismissed.

Reasons for dismissal of the 2010 proceedings

49    There were six defendants joined in the 2010 proceedings: The State of South Australia, Kevin Boaden, Nancy Schupelius, Maureen Cochram, Peter Mitchell and Sue Hyde.

50    The proceedings were commenced against the background of litigation in the 2004 proceedings in the Supreme Court of South Australia. The Department of Education and Children’s Services (DECS) was originally named as the sole defendant in those proceedings. The name of the defendant was subsequently amended to the “State of South Australia”. The change of name of the defendant reflected the circumstance that the employer was a manifestation of the Crown in right of South Australia: Crown Proceedings Act 1992 (SA), s 5. No other defendant was joined.

51    The five individuals later joined by Mr McDonald as defendants in the 2010 proceedings were persons with whom Mr McDonald had dealings in his capacity as a teacher at Brighton Secondary School. Each of them was a witness in the 2004 proceedings. It was alleged that the defendant, as their employer, was vicariously liable for their acts and omissions.

52    By his statement of claim in the 2010 proceedings, Mr McDonald alleged a number of causes of action, conveniently summarised by Besanko J (at [3]) as follows:

The applicant’s Statement of Claim alleges a number of causes of action against the six respondents, including breaches of implied terms of his contract of employment, breaches of a duty of care in tort, breaches or contraventions of the Trade Practices Act 1974 (Cth) (‘the Trade Practices Act’); breaches of the Workplace Relations Act 1996 (Cth) (‘Workplace Relations Act’); and an ‘action’ under the Workers Rehabilitation and Compensation Act 1986 (SA) (‘the Workers Rehabilitation and Compensation Act’). The Statement of Claim also alleges the existence of a number of obligations on the respondents which do not amount to recognised causes of action (paragraphs 189, 328, 422, 433, 556, 709, 713, 725, 786 and 843). These include a ‘failure to provide the Plaintiff his basic human right to procedural fairness, due process and natural justice’ under the Workplace Relations Act, and ‘an implied term of mutual trust and confidence in the Occupational Health and Safety Act 1986 between managers and workers’ asserted against several of the respondents.

53    By notice of motion, the respondents in the 2010 proceedings applied for orders setting aside the originating process on the basis that it was frivolous or vexatious or otherwise constituted an abuse of the Court’s processes. The respondents were represented in the proceedings by the Crown Solicitor through lawyers employed within the Attorney-General’s Department. The respondents relied on three affidavits, two of which were sworn by the respondent’s lawyers (the proposed fourth and fifth respondents in the proceedings Mr McDonald now seeks to commence).

54    The material before Besanko J included the judgment of Anderson J and the judgment of the Full Court of the Supreme Court of South Australia (SA Full Court) in the 2004 proceedings. Justice Besanko derived from those judgments a general summary of the factual matters which arose in the 2004 proceedings, which need not be detailed here. It is sufficient to say that Mr McDonald’s employment ceased in circumstances which he alleged caused him to suffer (among other things) personal injury and economic loss. He alleged that his employer had committed repudiatory breaches of contract and that he had been constructively dismissed.

55    Justice Besanko J summarised the outcome of the 2004 proceedings at [22] to [34] of his reasons for judgment. The critical events identified by his Honour were that:

(1)    a Master of the Supreme Court struck out a claim that DECS had contravened various provisions of the then-named Trade Practices Act 1974 (Cth) (TPA) because DECS was not a body corporate to which the TPA provisions applied but a body politic;

(2)    the Master also struck out a claim at general law based on physical or mental injury arising out of Mr McDonald’s employment on the ground that s 54(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) (WRC Act) provided that an employer was not liable for a compensable injury except for liability established under that Act;

(3)    the Master struck out a claim alleging a contravention of s 55A of the Occupational, Health, Safety and Welfare Act 1986 (SA) on the basis that the Supreme Court did not have jurisdiction to hear it;

(4)    the Master also struck out alleged heads of loss claimed in deceit and a claim founded in “harassment” on the basis that they were not sustainable at law;

(5)    Mr McDonald had been granted an extension of time in which to appeal from the Master’s decision;

(6)    when Mr McDonald raised issues concerning the Master’s decision with the trial judge he was told that he needed to file a notice of appeal, but he did not do so;

(7)    following the Master’s decision the remaining causes of action were those founded in contract, estoppel and deceit;

(8)    the trial judge dismissed a belated application for leave to amend the statement of claim to introduce claims for damages for pain and suffering, loss of dignity and reputation, loss of enjoyment of lifestyle and psychiatric injury;

(9)    the trial judge rejected the claims founded in deceit on the basis that there had been no false representation, allowed the contract claim in part and did not decide the estoppel claim;

(10)    Mr McDonald was awarded contractual damages in the amount of $392,850.00 for loss of earning capacity, superannuation and long service leave entitlements;

(11)    the State of South Australia appealed and Mr McDonald cross-appealed;

(12)    the Full Court upheld the State’s appeal on the grounds that the terms of the contract of employment did not include implied terms identified by the trial judge and any breach of a contractual duty of care was not repudiatory;

(13)    Mr McDonald’s cross-appeal was dismissed;

(14)    before the SA Full Court, Mr McDonald again attempted to raise a general law claim for personal injury;

(15)    the Full Court rejected the claim because no appeal had been brought from the Master’s decision and because the Master and the trial judge (who had dealt with the claim in similar terms) were correct to reject it;

(16)    on appeal, the State raised for the first time a question as to whether the claim founded in contract was barred by s 54(1) of the WRC Act, a claim rejected by the Full Court for reasons summarised by Besanko J (at [31]) as follows:

…  The liability in contract did not depend on the existence of the compensable disability and accordingly the applicant was not precluded from bringing the contractual claim, notwithstanding that he remained entitled to bring a claim under the Workers Rehabilitation and Compensation Act, as he has since done.

(17)    in the course of the appeal, Mr McDonald attempted to introduce a negligence claim against the five individuals (being the same persons he subsequently joined as defendants in the 2010 proceedings) on the basis that s 54(4a) of the WRC Act did not bar a right of action against a fellow employee in respect of harm caused by serious and wilful misconduct;

(18)    in a passage cited by Besanko J, the Full Court said of that claim (at [415]):

…  The reference to ‘serious and wilful misconduct’ suggests that Mr McDonald claims to have a right of action against other workers for a compensable disability, the claim being attributable to negligence of other workers that arose from or in the course of ‘serious and wilful misconduct’. Section 54(4a) does not bar a right of action against another worker if the disability is caused by the negligence of that worker and the negligence arose from or in the course of serious and wilful misconduct by the worker. If this right of action against another worker was to be maintained, in our opinion it should have been clearly pleaded and that would necessitate the naming of the other worker or other workers and, we consider, their joinder as a further party or parties. None of this occurred. In our opinion it is now too late to raise this matter in these proceedings.

56    As Besanko J noted, an application by Mr McDonald for special leave to appeal to the High Court was refused on 12 February 2010: McDonald v The State of South Australia [2010] HCATrans 25. The 2010 proceedings were commenced later that year.

57    The statement of claim in the 2010 proceedings named both the Minister for Education and Children’s Services and the Director General of Education as Mr McDonald’s employer. It claimed that alleged acts and omissions of the five individual respondents constituted “serious and wilful acts of misconduct” for the purposes of s 54(4a) of the WRC Act such that an action against them was not precluded by that Act.

58    Justice Besanko found that the proceedings constituted an abuse of process by re-litigation irrespective of whether the formal requirements of the doctrines of res judicata, issue estoppel or Anshun estoppel were fulfilled. His Honour said that the various claims in the 2010 proceedings had either been tried and determined in the 2004 proceedings or were claims that could have been advanced by Mr McDonald at that time. It should be emphasised that the conclusion that the proceedings constituted an abuse of process was drawn irrespective of the identity of Mr McDonald’s employer and irrespective of the circumstance that Mr McDonald had not previously joined the individual respondents as defendants in the 2004 proceedings. His Honour said that each of the individual respondents had been called as witnesses in the 2004 proceedings and the factual allegations against them had been traversed.

59    In addition, Besanko J found that the claims were in some respects untenable. By way of example, his Honour said that claims against the individual respondents could not be pursued because of s 54 of the WRC Act and because of an immunity conferred upon them under s 74 of the PSM Act.

60    In determining the application for leave I have not overlooked the possibility that the judgment in the 2010 proceedings may well be characterised as interlocutory in nature. It has not been suggested by Mr McDonald that anything turns on the characterisation of the judgment as final or interlocutory, at least so far as the principles in Clone are concerned. The legal basis for dismissing the originating application in the 2010 proceedings nonetheless assumes some importance in assessing the materiality of the issues now raised by Mr McDonald to the ultimate outcome.

Materiality of alleged fraud

61    For the purposes of what follows, it may be assumed that Mr McDonald was in a contract of employment with the Minister for Education and Child Development (constituted as a body corporate in accordance with s 7 of the Education Act), as were the five individuals joined as respondents in the 2010 proceedings.

62    Without being exhaustive, the following propositions are said by Mr McDonald to follow:

(1)    he was not an employee of DECS or the State of South Australia and, accordingly, the wrong defendant was joined in the 2004 proceedings;

(2)    the fact that the State of South Australia had been named as the sole defendant did not have the consequence that the Supreme Court had determined his case on the basis that his employer was the Minister;

(3)    he has a good suit against the Minister arising out of his former employment as a teacher which has been neither tried nor finally determined;

(4)    as a body corporate, the Minister is a corporation for the purposes of the TPA and so may be sued for contravention of its provisions directed to corporations; and

(5)    as employees of the Minister, the individual respondents were appointed under the Education Act and not under the PSM Act and so did not enjoy immunity from suit under s 74 of the PSM Act.

63    In this proceeding, as in the 2010 proceedings, Mr McDonald faces the insurmountable difficulty that the judgments of the Supreme Court of South Australia arising out of the 2004 proceedings have not been set aside. The material before this Court indicates that Mr McDonald has commenced or attempted to commence multiple proceedings in the Courts of South Australia to have the judgments set aside or to otherwise avoid their consequences, including by reference to the principles stated by the High Court in Clone: see McDonald v State of South Australia [2018] SASC 41; McDonald v State of South Australia (No 2) [2018] SASC 57; McDonald & Anor v State of South Australia; McDonald & Ors v Minister for Education and Child Development & Ors (No 3) [2016] SASC 79. To date, his attempts have been wholly unsuccessful.

64    This Court does not have jurisdiction to set aside the judgments of the Supreme Court of South Australia, whether in the exercise of its equitable jurisdiction or otherwise.

65    Accordingly, the question of whether the judgment of Besanko J should be set aside must be determined on the footing that the judgments and orders in the 2004 proceedings remain operative. If judgment in the 2010 proceedings were to be set aside, the claims in the 2010 proceedings would remain in the nature of a claim for damages against the Minister and the six individual respondents arising out of Mr McDonald’s former employment as a teacher. The claims would not proceed to trial without the respondents’ notice of motion first being re-heard. On that notice of motion, proof that Mr McDonald’s employer was the Minister and proof that the Minister was constituted as a body corporate could not assist Mr McDonald to avoid the application of the doctrines of res judicata, Anshun estoppel, issue estoppel and abuse of process by re litigation. It would remain that the 2010 proceedings were liable to be summarily dismissed as constituting an abuse of process by reference to the judgments delivered in the 2004 proceedings.

66    As Besanko J said, any issue about the precise identity of Mr McDonald’s employer properly belonged to the Supreme Court. The same may be said of any issue as to whether the employer was a body corporate and the legal consequences that might follow from that corporate status.

67    Furthermore, the Minister (as named in the Education Act) is, and always was, a Minister of the Crown in right of South Australia, whether or not constituted as a body corporate: Acts Interpretation Act 1915 (SA), s 4 (definition of Minister). As such, the Minister (as Mr McDonald’s employer) could be sued in the name “the State of South Australia” in accordance with s 5 of the Crown Proceedings Act 1992 (SA). That is not to say that Mr McDonald’s employer was the State of South Australia: see generally TransAdelaide v Evans (2005) 98 SASR 394. It is simply to say that the proper name of the defendant in the 2004 proceedings was the State of South Australia whether Mr McDonald’s employer was the Director General or DECS or the Minister as a body corporate, or any other manifestation of the same Crown. It was open to Mr McDonald in the 2004 proceedings to plead alternative cases as to the entity that was liable to pay him damages in contract, tort or any other cause. It was also open to him to plead the legal consequences of s 7 of the Education Act which constituted the Minister as a body corporate, at least as he perceived those consequences to be. Critically, the SA Full Court noted that there was an issue concerning the identity of the employer and dismissed the appeal on the basis that identifying the employer could make no difference to the outcome. If the Full Court was wrong in that regard, it does not follow that Mr McDonald is free to commence a differently formulated case in this Court, whether against the Minister or against his former colleagues or superiors.

68    For the reasons given below, there is nothing in the material before this Court to support the contention that by actual fraud Mr McDonald was deprived of the opportunity of pleading that the Minister was a body corporate or that he was in a contractual relationship with that body corporate or that the body corporate owed him a duty of care at general law or was an entity to which the relevant provisions of the TPA applied. Even prior to Anderson J delivering judgment in the 2004 proceedings, Mr McDonald had in his possession the memorandum of agreement constituting his contract of employment. Section 7 of the Education Act was in force then as it is now. In any event, if there be fraud affecting any judgment of the Supreme Court of South Australia, this Court has no jurisdiction to rectify it.

69    As Besanko J said (with respect, correctly) issues of breach by Mr McDonald and his employer were decided against him and, accordingly, his claims vis a vis his employer are bound to fail irrespective of the employer’s precise identity. To those observations I would add that proof of the corporate nature of the Minister does not have the consequence that leave should be granted to commence a claim against the Minster for contraventions of the TPA. Such claims would be untenable not only because the Minister is not a “corporation” as defined in s 4 of the TPA (as in force at the relevant time), but also because the TPA binds the Crown in right of State (including the Minister) only in the limited circumstances defined in s 2B(1) of the TPA. Mr McDonald has not suggested how those critical limitations could be overcome in relation to matters arising in the relevant employment context. It is impossible to see how they could be.

70    The same may be said of the operation of s 54(1) of the WRC Act. The Minister, as employer, would be entitled to the protection of that provision, whether or not a body corporate. So too would be the individual respondents named in the 2010 proceedings, as they also fall within the definition of “employer”: WRC Act s 54(8). Mr McDonald’s allegation that the actions of the individuals constituted serious and wilful misconduct (so as to put his case outside of the operation of s 54) is yet another attempt to litigate an issue that he attempted, belatedly, to introduce in the 2004 proceedings.

71    As to the individual respondents in the 2010 proceedings, Besanko J struck out those claims on a number of discrete bases. Each of the individuals had given evidence in the 2004 proceedings and it was their acts and omissions for which Mr McDonald’s employer was said to be vicariously liable. Proof that a different employer was vicariously liable for their acts or omissions would not avoid the consequence that their acts and omissions have been found at trial not to constitute an actionable breach. Similarly, if the individual respondents are employees of the Minister (as Mr McDonald asserts), s 54(4a) of the WRC Act would nonetheless apply, as Besanko J found. To the extent that Mr McDonald contends otherwise, the occasion to do so was in the context of the 2004 proceedings.

72    It may be that Mr McDonald did not join the individuals as parties to the 2004 proceedings because he believed them to have the protection of an immunity conferred by s 74 of the PSM Act. He now seeks to argue that they enjoy no such protection because they, too, are employees of the Minister appointed under the Education Act and so were not appointed under the PSM Act. Again, these are contentions of fact and law that were available to be agitated by Mr McDonald in the 2004 proceedings if he considered they might be of some utility. For the reasons given below, there is nothing to suggest that Mr McDonald was fraudulently deprived of the opportunity to seek an award of damages against the individual respondents on the basis that they were not personally immune from suit. It follows that even if the judgment of Besanko J were to be set aside, it would remain that Mr McDonald cannot now proceed against the individual respondents in this Court. That is the case irrespective of the substantive merits of the proposed claims against the individuals (as Mr McDonald perceives them to be) and irrespective of whether they had previously been joined in any earlier action.

73    Many of the considerations to which I have referred thus far are matters that would affect the exercise of the discretion as to whether the equitable power to set aside the judgment of Besanko J for any proven fraud should be exercised in Mr McDonald’s favour assuming that actual fraud could be established. They affect the materiality of the alleged fraud and go particularly to the contention that a different outcome would have or might have ensued on the respondents’ notice of motion had the “actual fraud” not occurred.

74    In my view, Mr McDonald’s prospects of succeeding on his arguments as to the materiality of any fraud have such grim prospects of success that the proposed proceeding would be liable to be struck out in the exercise of this Court’s powers under s 37P(6)(b) of the Federal Court of Australia Act. That is a sufficient basis to refuse leave whatever conclusions might be drawn as to the nature of the alleged fraud and Mr McDonald’s prospects of proving it.

The “actual fraud” allegations

75    The 2019 documents are replete with allegations of actual fraud affecting the judgments of the Supreme Court in the 2004 proceedings. For reasons already given, this Court cannot and will not entertain any application founded on the procurement of a judgment of the Supreme Court on grounds of actual fraud. It is not within the power of this Court to set those judgments aside. In other respects the proposed statement of claim merges complaints about events in this Court with complaints about events in other courts in a way that is difficult to untangle. There appears to have been no attempt by Mr McDonald to confine the proposed proceeding to one founded on actual fraud affecting the judgment given by Besanko J in the 2010 proceedings. That is a further basis, sufficient of itself, to justify the refusal of leave.

76    The remaining allegations of fraud in the 2010 proceedings otherwise follow an identifiable pattern. It is alleged that the respondents in that proceeding wrongfully and knowingly concealed and fabricated evidence and that if the true situation had been known to Besanko J there would have been a different outcome.

77    Among the material said to have been concealed are certain legislative provisions in force at relevant times, particularly ss 5, 6, 7, 8, 9, 11 and 15 of the Education Act and ss 3,7, 8 and 74 of the PSM Act. Among other things, these provisions are said to support the proposition that the individual respondents in the 2010 proceedings enjoyed no immunity from suit under s 74 of the PSM Act with the result that they may be sued.

78    The pleaded allegations of “actual fraud” in this respect have been drafted by Mr McDonald in language that is subjectively intended to invoke the principles discussed in Clone. So much is clear from the proliferation of adjectives attaching to the alleged conduct: “wanton and reckless disregard for the truth”, “blind and reckless indifference”, “deception, deceit and dishonest conduct”.

79    However, I am not satisfied that the alleged facts support a claim of actual fraud as a matter of substance. Nor has Mr McDonald established a prima facie case on the evidence that the judgment of Besanko J was obtained by fraud of the kind that might support a reasonably arguable case for the exercise of the Court’s original jurisdiction to set the judgment aside.

80    Mr McDonald cannot seriously maintain that by a wrongful act or omission of another party to the 2010 proceedings he was deprived of an opportunity to oppose the respondents’ notice of motion because the provisions of the Education Act or the PSM Act were concealed from him. The enactments are not “evidence” that was capable of being concealed by any person, nor are they “fresh, new and compelling” as he asserts. The legislation was always publicly available. It has been in Mr McDonald’s hands in fact since he commenced the 2004 proceedings. It was for Mr McDonald to formulate his case in that proceeding and his opponent was under no obligation to render him legal assistance.

81    The proposed statement of claim also contains repeated allegations concerning the application of legislative provisions to the facts, together with allegations that his opponents in litigation were experts in their field and therefore knew how the law should properly apply to the facts, together with allegations that his opponents fraudulently concealed the proper application of the law to the facts so as to deprive him of his rights. 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 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.

82    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. Prior to the delivery of judgment in Clone, Mr McDonald attempted to commence a proceeding on the basis that he had obtained “new, fresh and compelling” evidence. It was not until after the delivery of judgment in Clone that he formulated a proposed claim that judgment in the 2010 proceedings (and for that matter the 2004 proceedings) was obtained by actual fraud. In oral submissions, Mr McDonald told the Court that it was not until after the delivery of judgment in Clone that he came to appreciate the necessity to plead and prove actual fraud if he sought to have a judgment of the Court set aside in the exercise of its original jurisdiction.

83    It is further alleged that the respondents or a combination of them fraudulently concealed information that would have shown that Mr McDonald’s employer was a body corporate and that they did so for the purpose of wrongfully depriving him of his rights under the TPA. I have already explained why this aspect of the proposed claims is misconceived. Mr McDonald at all times had in his possession the materials necessary to argue that his employer was the Minister. That the Minister was constituted as a body corporate is made plain by s 7 of the Education Act. It is kept secret from no one. It is also plain from the reasons for judgment given in the 2004 proceedings and the 2010 proceedings that Mr McDonald was alert to arguments available to him concerning the identity of his employer and that he indeed mounted arguments based on the same employment contract upon which he places so much significance in this action. The time to agitate those issues was the time that his claims founded in contraventions of the TPA in the Supreme Court were first struck out by the Master. That was the time at which Mr McDonald ought to have given consideration to running a case founded on employment by an entity other than DECS if he thought it might assist him. The fact that he did not do so in 2004 does not mean that he was entitled to do so in 2010, nor does it mean that he is entitled to do so now.

84    Next it is alleged that certain respondents fraudulently failed to disclose annual reports of DECS published between 2003 and 2013. Reports published after 2013 may be disregarded as post-dating the judgment sought to be set aside.

85    This aspect of the pleaded case otherwise takes this matter no further. There has been no attempt by Mr McDonald on the leave application to show that the individual respondents were under a legal obligation to give discovery in the 2010 proceedings, nor is there any evidence to demonstrate even a prima facie case that the respondents to the proposed action knew that the contents of the DECS annual reports might be fatal to their notice of motion nor that it contradicted any submissions upon which they relied. The potential evidentiary effect of the annual reports has not been established on the evidence before me in any event.

86    It is then alleged that in 2012 and 2013 new information came to light in correspondence passing between a Member of Parliament and the then Crown Solicitor for the State of South Australia. The correspondence post-dates the 2010 proceedings. Its existence does not establish a prima facie case of fraud against any respondent to the proposed proceeding.

87    It is then alleged that the solicitor for the State in the 2004 proceedings made false and misleading statements about the identity of their client. It appears that following judgment in those proceedings, a solicitor in the employ of the Crown Solicitor’s Office wrote to Mr McDonald in relation to a significant adverse costs order made against him and that by that correspondence Mr McDonald learned that the Crown Solicitor had received instructions from SAicorp, the State’s “captive insurer” (now the second respondent in the proposed proceeding). These allegations concern a costs liability arising out of the 2004 proceedings. That liability did not affect any question arising in the 2010 proceedings. The same may be said of other complaints concerning the costs outcome in the 2004 proceedings. No doubt the cost consequences were financially catastrophic for Mr McDonald, or at least potentially so. However, this Court could not disturb the costs orders or assessments of the Supreme Court even if a prima facie case of fraud were to be established.

88    Further issues relating to SAicorp are alleged in relation to the 2010 proceedings. In crude summary, it is alleged that the solicitors in those proceedings falsely represented that their clients were the respondents, knowing that their client was in fact the respondents’ insurer. It is unclear how proof of that allegation (even if established) could justify the setting aside of the judgment. The pleading then goes on to mount arguments to the effect that SAicorp was not Mr McDonald’s employer. It has never been suggested by the defendants to the 2010 proceedings that it was. These aspects of the pleading betray a fundamental misunderstanding as to the principle of subrogation and the rights and responsibilities of an insured party in litigation.

89    There are further allegations of actual fraud said to have been established by the outcome of applications for information made by Mr McDonald under the Freedom of Information Act 1991 (SA). It is alleged that the non-existence of certain documents supports Mr McDonald’s case about the inapplicability of s 74 of the PSM Act to certain individual respondents. Similar allegations are made in relation to written requests for documents he made in 2015 and 2016. The non-existence of the documents (even if proven) does not establish actual fraud and does not otherwise assist Mr McDonald to avoid the principle of finality.

90    It is then alleged that evidence concerning the employment status of the individual respondents was “fabricated” with a view to wrongly invoking the protection afforded by the PSM Act. That is another serious allegation made without a proper evidentiary foundation. Mr McDonald may well disagree with the facts stated in the documents and the submissions made by the respondents in respect of them. However, the allegation that the respondents conspired to fabricate evidence amounts to no more than an assertion lacking adequate particulars and having no proper support in the evidentiary material even considered at a rudimentary level.

91    I have had regard to additional allegations Mr McDonald seeks to include in the proposed statement of claim set out in the fourth affidavit. The proposed inclusions do not detract me from the conclusions I have reached in relation to the 2019 documents. They concern the same subject matter and employ the same pleading devices to which I have already referred.

92    Finally, to the extent that the proposed proceeding is a claim for damages against the respondents in the 2010 proceedings or the different respondents in the proposed proceeding for acts or omissions amounting to actual fraud, that claim depends for its success on proof that the respondents obtained judgment by actual fraud.

93    I am not satisfied that there is a sufficiently arguable case of actual fraud to justify the grant of leave to commence a claim based on the principles stated in Clone.

94    To the extent that the proposed proceeding is (or includes) an application to set aside the judgment of Besanko J, I conclude that the proceeding is an improper attempt by Mr McDonald to bring into this Court a wider circle of respondents with a view to increasing his prospects of revisiting his long standing grievances arising out of his former employment.

THE APPLICATION FOR JUDICIAL REVIEW

95    The originating application contains six grounds for judicial review. Each commences with these words (or words to similar effect):

R2.26 of the Federal Court rules should not be used by the National Judicial Registrar to obstruct new, fresh and compelling evidence which was not available at the time Justice Besanko handed down his decision in case SAD 178 of 2010 but which have become available since that time …

96    Each of the six grounds goes on to assert what the “new, fresh and compelling evidence” reveals about the conduct of the respondents to the proceedings before Besanko J and their legal representatives. I have traversed those allegations in the context of refusing the application for leave. The effect of my conclusion is that the allegations do not enjoy reasonable prospects of success and so constitute a claim of the kind that would be liable to be summarily dismissed as vexatious or an abuse of process: Rules, r 26.01. Alternatively, the documents would be liable to be removed from the Court file on the basis that they contain matter that is vexatious: Rules, r 6.01. The Registrar was correct to refuse to accept the documents for filing on that basis.

97    As I have already explained, the application for judicial review should be dismissed because the Registrar was obliged by r 2.27(f) of the Rules to refuse to accept the 2019 documents for filing in any event. That conclusion may be based upon an overly generous interpretation of the 2019 documents as intended to constitute an originating application for orders to set aside the judgment of Besanko J in the 2010 proceedings. That was the interpretation urged by Mr McDonald in the course of written and oral submissions.

98    If I am wrong in characterising the proposed proceeding in that way, I would nonetheless dismiss the application for judicial review on its substantive merits.

99    If the proposed proceeding was not to be characterised as an application to set aside the judgment in the 2010 proceedings, the only conclusion available to the Registrar was that the proposed proceeding was a further attempt by Mr McDonald to raise grievances relating to his former employment that had previously been summarily dismissed by this Court in the 2010 proceedings and otherwise determined against Mr McDonald in the 2004 proceedings. The circumstance that the proposed respondents are different from the respondents to the 2010 proceedings does not dissuade me from that view. It clearly constitutes an abuse of process to commence such an action in circumstances where the judgments delivered in the 2010 proceedings and the 2004 proceedings have not been set aside.

THE RECUSAL APPLICATIONS

100    A judge should not recuse herself from hearing a case without a proper and substantial reason for doing so: Rana v Commonwealth of Australia [2013] FCA 189 at [36] (Mansfield J).

101    The principles to be applied on an application for disqualification on the grounds of actual bias or apprehended bias are well established. I had occasion to summarise them in Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197 and repeat that summary here:

28    Where actual bias is alleged, the question is to be approached on the evidence and not by reference to the fair-minded lay observer: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33] (Gummow A-CJ, Hayne, Crennan and Bell JJ). An allegation of actual bias is a serious allegation, requiring distinct proof: SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15] (Weinberg, Stone and Jacobsen JJ).

29    In Jia, Hayne J said at [185] – [186]:

185    Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

186    Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. …

…

34    The test for apprehended bias is sometimes referred to as the ‘double might test’. It is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue he or she is to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Isbester v Knox City Council (2015) 255 CLR 135 at [12] (Kiefel, Bell, Keane and Nettle JJ). See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] — [36] (Allsop CJ, Kenny and Griffiths JJ).

35    The first ‘might’ concerns the likelihood (to be assessed by the Court) of the lay observer forming the reasonable apprehension. The second ‘might’ concerns the content of the apprehension itself. It concerns the assessment (notionally made by the lay observer) of the likelihood of the decision-maker having a foreclosed mind (as opposed to having a predisposed opinion) and so deviating from the course of deciding a case on its merits.

36    Judicial statements to the effect that an allegation of apprehended bias must be distinctly made and clearly established are not to be understood as altering the degrees of likelihood inherent in the test itself: see MZZXM v Minister for Immigration and Border Protection [2016] FCA 405 at [106] and the cases cited therein. Each ‘might’ in the double might test connotes a degree of likelihood that is lower than that which may be required by the civil standard of proof in an ordinary fact-finding context. It must nonetheless be shown that the reasonable lay observer might apprehend that the decision-maker might have a foreclosed mind. It is not sufficient to demonstrate that the observer may have ‘a vague sense of unease or disquiet’ on the question: Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 (Jones) at [100] (Weinberg J).

102    The first recusal application was filed on 29 March 2019. It asserts five grounds (at [2] to [8]). An accompanying affidavit substantively repeated those grounds without elaborating upon them.

103    Mr McDonald acceded to the Court hearing submissions in support of the first recusal application at the same time as hearing argument in the substantive proceeding. That was considered to be the preferable course because it appeared that consideration of at least one of the recusal grounds may require a comparison of the issues to be determined in this proceeding with the issue I determined when giving the direction in relation to the 2017 documents.

104    Judgment on the first application was reserved on 29 April 2019, and argument reopened in August. The second recusal application was filed on 1 October 2019. It asserts a large number of grounds, many of which are repetitive either of the grounds previously relied upon or oral submissions that had previously been advanced. Given their number, it is convenient to deal with Mr McDonald’s arguments in categories according to their subject matter.

Working relationships

105    It is submitted that I should recuse myself on the basis of a “close working relationship” with Besanko J and White J. It may be accepted that each of Besanko J and White J have given judgments adverse to Mr McDonald in the past. The circumstance that a justice of a court is appointed to sit in a place at which other justices sit does not support a conclusion that the justice is in any form of relationship with the other justices sufficient to give rise to an apprehension of bias.

106    It is also submitted that I have demonstrated bias by attempting to protect lawyers employed by the Attorney-General’s Department from allegations of fraud and by not permitting Mr McDonald to permit those persons to be served with the proposed proceeding. The grounds go so far as to assert that the Court as presently constituted has “covered up” the malpractice of solicitors who have previously appeared against Mr McDonald. These assertions are made without proper evidentiary support.

107    It may be that Mr McDonald is asserting bias on the basis of my prior employment as a solicitor in the Crown Solicitor’s Office, most recently in 2007. However, it has not been suggested by Mr McDonald that I had any involvement in that capacity in any case to which Mr McDonald was a party. Nor has Mr McDonald asserted the existence of any particular relationship with any particular lawyer with whom he has had prior dealings other than an allegation that I am “acquainted” with persons who have committed fraud. It has not been established that my prior employment with the Crown Solicitor’s Office forms a proper basis for recusal.

Fact and outcome of previous decision or decisions

108    Mr McDonald submits that my direction pursuant to r 1.37 of the Rules in relation to documents previously lodged for filing by him in 2017 gives rise to an apprehension of bias or otherwise demonstrates actual bias.

109    The allegation of actual bias is premised on a series of additional grounds to the effect that in making the earlier decision I had previously demonstrated bias and bad faith. These submissions assert no more than a sense of grievance that I have previously decided a question adversely to Mr McDonald’s interests coupled with an assertion that the question was decided erroneously. Mere dissatisfaction with the outcome of a previous decision is insufficient of itself to demonstrate grounds for recusal in relation to a later proceeding. The earlier decision was made on an assessment of the content of the 2017 documents having regard to the nature of the claims summarily dismissed by Besanko J and the judgment in the 2004 proceedings. The decision did not require any question to be decided as to Mr McDonald’s credit so as to affect the adjudication of any question of fact now arising before the Court. The circumstance that I have previously given a direction adverse to Mr McDonald does not of itself justify recusal in the present proceeding on the ground of apprehended bias.

110    It is then submitted that I have in fact prejudged the outcome of the present proceedings because the issues to be determined are the same as those determined in 2017.

111    To the extent that this submission raises a different issue from that which I have just determined (which is unclear) it must also be rejected. The 2017 documents were not in the nature of a proposed proceeding to set aside any judgment on grounds of fraud. They comprised an originating application and statement of claim each of which fell to be considered by reference to their content. I adjudged the proposed proceeding in 2017 to be one by which Mr McDonald sought to sue the same respondents he had previously joined in the 2010 proceedings for acts and omissions arising out of his prior employment. The proposed pleading in 2017 contained no allegation that the 2010 judgment had been procured by actual fraud. It was not an application set aside a judgment on Clone principles. Whilst it might have been Mr McDonald’s intention to show in that proceeding that “new fresh and compelling evidence” had come to light, that of itself would be insufficient to invoke the Court’s original jurisdiction in equity to set aside its own perfected judgment. I reject the contention that consideration of the 2017 documents has brought about the circumstance that the issues arising on this action have been prejudged in fact. I also reject the contention that there is a reasonable apprehension that the Court as presently constituted cannot bring an impartial mind to the questions now falling to be decided in relation to the different documents lodged in 2019.

112    It is then submitted that I have demonstrated bias by previously ignoring the principles in Clone. Clone had not been decided at the time of the 2017 decision, although the principles applying in that case were not new. The 2017 documents did not purport to invoke principles of the kind discussed in Clone. Even if they did, demonstrating error in the application of the principles on an earlier occasion could not of itself justify disqualification on the present action.

113    Next it is submitted that I have previously caused to be rejected a summons and statement of claim in action SAD 299 of 2018. It has not been established that I caused any documents in that action to be rejected. It does not appear that the action is one to which Mr McDonald is a party.

114    Mr McDonald may have intended to refer to action SAD 299 of 2017, being a late application for leave to appeal from the judgment of Besanko J. That application appears to have come before Collier J for case management before it was discontinued by Mr McDonald. There is no proper basis upon which Mr McDonald can allege that I had any involvement in action SAD 299 of 2017. I reject the factual premise underlying this ground.

Alleged reliance on earlier direction

115    It is then submitted that by rejecting the 2019 documents the Registrar acted in accordance with the direction I had given in respect of the 2017 documents, with the result that I was, in effect, judicially reviewing my own prior decision in this action. I reject the factual premise underlying this submission. There is no evidentiary basis to support the assertion that the Registrar acted in accordance with an earlier direction and certainly no evidentiary basis to support the allegation that the Registrar did any such thing at my suggestion or insistence.

Bad faith, fraud and conspiracy

116    Mr McDonald alleges that the Court’s discretionary powers have been used in bad faith to “bully” him out of a constitutional right to have his claims heard. There are broad allegations of conspiracy, fraud and breach of the oath of judicial office or other abuses of power. There has been no attempt to support such broad assertions with evidence. They appear to be based on inferences that interlocutory decisions adverse to Mr McDonald are wrong and so must be explained by corruption and mala-fides. The making of an error of fact or law in the performance of a judicial function does not demonstrate actual bias, nor does it give rise to a reasonable apprehension of bias.

Delay

117    In August 2019, Mr McDonald sent an email to my Associate enquiring when judgment in this matter might be delivered. The second recusal application was filed after Mr McDonald was told when judgment might be expected. It contains grounds that the delay in delivering judgment formed part of a deliberate and fraudulent design on the Court’s part to obstruct justice in his case.

118    In oral submissions in support of this ground, Mr McDonald denied that his case should be given extraordinary priority over other matters in which judgment was reserved. He said that he did not intend to raise any such allegation. Rather, his submission was to the effect that the merits of his case were so strong and so obvious that any justice of the Court acting honestly and impartially could and should have promptly entered judgment in his favour.

119    Mr McDonald’s frustration at any delay in the final resolution of this matter may well be understandable. Undue and unexplained delay in the resolution of a legal proceeding is, of course, undesirable. Whether the delivery of judgment has been unduly delayed will in all cases depend on the circumstances, having regard to the nature of the issues to be decided, the overall judicial and administrative resources of the Court, the Court’s overall workload and any whether argument has been reopened for any purpose.

120    I consider this ground for recusal to be a manifestation of Mr McDonald’s inability to comprehend that his arguments are without merit and his sense of frustration that the arguments have not been immediately accepted. Rejection of Mr McDonald’s arguments demonstrates neither actual bias, nor corruption, nor abuse of judicial office, nor any other adjectival conclusion employed by Mr McDonald in the course of submissions. Having regard to all of the circumstances I reject the contention that the passage of time between reservation of judgment and resolution of this proceeding gives rise to an apprehension of bias.

Other grounds

121    In some respects the grounds for recusal are difficult to understand or otherwise appear to bear no relation to these proceedings. For example, it is asserted that there has been a failure to uphold a decision made by a Master of the Supreme Court of South Australia. It forms no part of the task of this Court to uphold any such judgment. There is no basis for recusal based on this or like grounds.

122    Regard has otherwise been had to complaints made by Mr McDonald in the course of the proceedings, particularly complaints made by him in oral submissions at a hearing that took place on 15 October 2019. On that day, argument was reopened for the purposes of permitting Mr McDonald to make oral submissions in relation to the second recusal application. Near the commencement of that hearing Mr McDonald was informed that argument had not been reopened for the purpose of hearing him repeat submissions he had previously made. Mr McDonald was asked several times to confine his submissions to new material, that is, material post-dating the reservation of judgment. He was interrupted because of his persistent attempts to revisit submissions he had already made about the substantive merits of his underlying claims. Mr McDonald claimed to be disadvantaged at the hearing because he had been interrupted and because he could not recall what submissions he had previously made. He asserted an entitlement to be provided with a copy of the transcript of the previous hearing without charge and complained that he had not previously been given a copy in response to an earlier request. He sought an adjournment to gather his thoughts. The adjournment was refused.

123    It was (and remains) apparent to the Court that Mr McDonald had sought to utilise the hearing of 15 October 2019 for the purpose of repeating submissions he had previously made, so as to reinforce his claim that a judge unaffected by bias would and should have readily accepted the submissions and promptly delivered judgment in his favour. The Court formed the view that Mr McDonald should not be permitted to use the judicial and administrative resources of the Court to prolong the hearing in that way. That view was expressed with increasing firmness as the hearing progressed. In response, Mr McDonald directed allegations of fraud, dishonesty and bad faith at the Court. It is appropriate to proceed on the basis that Mr McDonald’s complaints about the conduct of the hearing of 15 October 2019 were intended to lend further support to the second recusal application and I will deal with them as such.

124    Considered in context, the circumstance that the Court interrupted Mr McDonald in respect of his conduct at the hearing on 15 October 2019 does not justify recusal on the grounds of actual or apprehended bias. Mr McDonald had been given ample opportunity to make submissions in support of the first recusal application. The Court’s interruptions on the reopening of argument were neither unwarranted nor disproportionate in all of the circumstances. I am not satisfied that they form a proper basis for recusal on the grounds of actual or apprehended bias.

MRS MCDONALD

125    The extent to which the interests of Mrs McDonald differ from those of Mr McDonald is somewhat unclear. There is nothing in the material before me to support a conclusion that Mrs McDonald is in any better position to succeed. The case for the applicants was run on the basis that it was necessary for both parties to establish that the 2019 documents properly invoked the principles in Clone. I have found that they do not. That finding extends to Mrs McDonald as the second applicant.

COSTS AND OTHER ORDERS

126    The respondent’s solicitor has filed an affidavit seeking orders in the event that this proceeding were to be dismissed. The affidavit states (at [3]):

I am instructed that the Respondent intends to seek the following orders in the event that this proceeding is dismissed:

3.1.    The Applicants pay the Respondent’s costs of the proceeding, fixed in the amount of $2,666.95 pursuant to section 43(3)(d) of the Federal Court Act 1976.

3.2.    Pursuant to rule 39.03(2), any further proceedings commenced by either or both of the Applicants which:

   3.2.1.    name Nicola Colbran as a Respondent; and

3.2.2.    seek (in form or in substance) an order of review of a decision pursuant to rule 2.26 to refuse to accept a document which seeks to set aside, reopen or otherwise relitigate the matters the subject of the decision of Besanko J in McDonald v South Australia [2011] FCA 297,

are automatically stayed by operation of this order until such time as the costs order made in paragraph 1 of these orders (3.1 of this affidavit) has been satisfied by receipt of cleared funds.

127    The respondent’s affidavit was filed on the morning of 27 November 2019 and served on Mr McDonald shortly afterward. Later that day, Mr McDonald advised the Court that he was not able to attending upon the delivery of judgment on 29 November 2019. He did not state why.

128    Notwithstanding that Mr McDonald was served with the affidavit before his communication with the Court, it is appropriate to proceed on the basis that the orders sought by the respondent may be opposed. Subject to what is said below, the applicants should be afforded an opportunity to be heard in respect of them.

129    The applicants have been aware from the commencement of the proceeding that the respondent’s submitting appearance was subject to the respondent’s reservation of her position as to costs. In the ordinary course I would have invited the applicants to make oral submissions in relation to costs at the time of delivering judgment. In the circumstances, I will make an order for costs in the terms sought by the respondent, but grant the respondents liberty to apply to vary or set aside the order. Without expressing any view as to the merits of any such application, it is appropriate to inform the applicants that should such an application be unsuccessful, a further adverse costs order may be made against them.

130    The application for an order in terms of [3.2] of the affidavit of Ms Leideritz raises a matter having ramifications for the applicants outside of this proceeding. It is a matter in respect of which they should be afforded an opportunity to advance oral or written submissions, should they wish to do. Orders will be made today to facilitate that.

131    I am satisfied that it is appropriate to order that any documents lodged for filing by the applicants in the meantime be referred to me for consideration as to whether they should be accepted for filing or as to whether any decision to accept them for filing should be deferred pending the outcome of the stay application.

132    In making that order I have had regard to the frequency with which the applicants have sought to commence proceedings in this Court, as evidenced by the material contained in Exhibit 2. It contains a record of the documents lodged for filing by Mr McDonald in the South Australia District Registry between 20 July 2017 and 15 February 2019. 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. Mr McDonald did not commence any application for judicial review in relation to any one of the prior decisions. I am mindful that he has not been provided with an opportunity to explain why no applications for review were made in relation to any one of the many prior decisions. For present purposes it is unnecessary to make any finding as to his subjective motivations. It is sufficient to find that there is a high likelihood that Mr McDonald will seek to commence further proceedings in the Court, or to file interlocutory applications in proceedings that have previously been finalised, and that he may seek to do so before the respondent’s stay application is heard and determined. Whether any such documents should be accepted for filing should be determined by a justice of the Court, having regard to a potentially larger range of materials than that to which a Registrar may have regard in exercising the function conferred under r 2.26 of the Rules.

Associate:

Dated:    29 November 2019