Abel Metal Polishing Service (Reg) v State of South Australia

[2009] SASC 218

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal)

ABEL METAL POLISHING SERVICE (REG) v STATE OF SOUTH AUSTRALIA

[2009] SASC 218

Judgment of The Full Court

(The Honourable Justice Bleby, The Honourable Justice Layton and The Honourable Justice Kelly)

28 July 2009

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - GENERALLY

Application for permission to appeal against a decision of a single judge of the Supreme Court - single judge upheld magistrate's refusal to disqualify himself from hearing applicant's summary civil claim - applicant alleged bias - whether permission to appeal should be granted.

Held: None of the grounds raised by the applicant raise any point of law or principle of general importance justifying grant of leave - single judge correct - Magistrates Court is the appropriate court to determine the dispute - permission to appeal refused.

Supreme Court Civil Rules 2006 (SA) s 282(2)(b), referred to.
Stokolosa v Weeks Peacock Quality Homes Pty Ltd [2000] SASC 334, applied.

ABEL METAL POLISHING SERVICE (REG) v STATE OF SOUTH AUSTRALIA
[2009] SASC 218

ABEL METAL POLISHING SERVICE (REG) v STATE OF SOUTH AUSTRALIA

Full Court:      Bleby, Layton and Kelly JJ

1. THE COURT:      This is an application for permission to appeal which has been referred to this Court by a single judge pursuant to r 282(2)(b) of the Supreme Court Civil Rules 2006 (SA).

2. On 4 May 2009 the Judge dismissed the applicant’s appeal from the decision of an auxiliary magistrate, sitting in the civil jurisdiction of the Magistrates Court, not to disqualify himself from hearing a claim brought by the applicant against the Courts Administration Authority. The claim concerned the alleged wrongful detention of one mag wheel held by the Court as an exhibit during the course of a previous trial in the Magistrates Court.

3. Permission to appeal to the Full Court from a judgment on appeal from a judgment of the Magistrates Court in its civil jurisdiction will generally only be granted where the intended grounds of appeal disclose a point of law or point of principle of general importance, and there is doubt about the correctness of the decision.[1] The Court as presently constituted has considered the reasons of the single Judge together with the extensive written submissions filed by the applicant in support of the application for permission to appeal and the material to which that submission refers. While the points raised may be considered by the applicant to be points of importance, in our view none of them are points of law or points of principle of general importance. We also consider that there is no doubt as to the correctness of the single Judge’s conclusion. We consider that none of the grounds raised before the auxiliary Magistrate or the Judge required the Magistrate to disqualify himself from hearing the applicant’s claim.

   [1]    Stokolosa v Weeks Peacock Quality Homes Pty Ltd [2000] SASC 334.

4. We are satisfied that the Magistrates Court is the appropriate court to hear the plaintiff’s claim and that the appointment of an auxiliary magistrate to hear the claim is entirely appropriate.

5. For these reasons permission to appeal is refused.

6. We also add that the applicant’s energies would now be better concentrated on having the Court hear and determine his claim rather than being diverted from that central issue by the constant and costly pursuit of peripheral issues.