FORMER PUBLIC TEACHER SEEKS FOR REVIEW OF THE REGISTRAR’S DECISION IN REJECTING HIS NOTICE OF APPEAL AGAINST THE JUDGMENT DISMISSING HIS CLAIM FOR DAMAGES

 MCDONALD v REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA [2021] SASC 57 (19 May 2021)

This is a review of the administrative decision by the Registrar rejecting the Notice of Appeal lodged by the applicant purporting to appeal against reasons for judgment on the ground that the proposed Notice of Appeal is frivolous, vexatious, scandalous or an abuse of the process of the Court.

Facts:

On 21 May 2008, Anderson J delivered reasons for judgment in the action in  McDonald v State of South Australia. In his reasons for judgment, Anderson J said that Mr McDonald had been employed as a teacher by the State Department of Education and Children’s Services off and on between 1988 and 2003. Anderson J said that Mr McDonald’s claim was against the State of South Australia (the State) for damages for breach of contract. Anderson J concluded that the State had breached the contract of employment causing Mr McDonald to suffer loss and damage, and assessed damages at $392,850.

On 23 June 2008 judgment was entered in favor of Mr McDonald against the State for damages of $369,100 with effect on 21 May 2008.

The State appealed against that judgment. Mr McDonald filed a cross-appeal.

On 30 July 2009, the Full Court concluded that the State’s appeal should be allowed and Mr McDonald’s cross-appeal should be dismissed.

On 14 August 2009 judgment was entered by the Full Court, allowing the State’s appeal, setting aside the original judgment, substituting judgment dismissing Mr McDonald’s claim and dismissing Mr McDonald’s cross-appeal.

The applicant files a Review of administrative decision by the Registrar rejecting the a Notice of Appeal lodged by Mr McDonald purporting to appeal against reasons for judgment on the ground that the proposed Notice of Appeal is frivolous, vexatious, scandalous or an abuse of the process of the Court.

Issue: Should the rejection of notice of appeal be upheld?

Law:

• Supreme Court Act 1935 S.50

Analysis:

Although subrule 13.4(2) of the Uniform Civil Rules 2020 provides that an application for review under rule 13.4 must be made by filing an interlocutory application and supporting affidavit, an interlocutory application is not apposite when a document rejected by the Registrar is an originating process.

The subject of the proposed Notice of Appeal would be incompetent because it is against Anderson J’s reasons for judgment rather than against the original judgment. Section 50  of the Supreme Court Act 1935 contains no provision for a second or subsequent appeal against a judgment (Mr McDonald’s cross-appeal having been dismissed in 2009); and, having been set aside by the Full Court in 2009, the original judgment no longer exists and hence there could be no subject matter of an appeal against it.

It follows that the proposed Notice of Appeal is frivolous, vexatious and an abuse of the process of the Court and the Registrar’s decision to reject it was correct.

Conclusion: Application for review dismissed

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