Attorney General for the State of SA v Burke No. Scgrg-95-1420 Judgment No. S114

ATTORNEY-GENERAL FOR STATE OF SOUTH AUSTRALIA v BURKE
[1999] SASC 114

Full Court: Millhouse, Prior and Duggan J

MILLHOUSE J: I agree, generally for the reasons of Prior J that the appeal should be dismissed.
PRIOR J: On 20 February 1997 a Judge of this Court declared the present appellant a vexatious litigant. A notice of appeal against that decision was filed on 24 February 1997. On 20 August 1997 the appellant sought an extension of time within which to set down the appeal. On 17 October 1997 a Master of this court made an order in the appellant’s favour extending the time to set down to 18 December1997. The appeal was not set down by that date. A second application to extend time was lodged. That application was finally heard by the same Master on 23 June 1998. On that occasion, the Master refused to extend time, referring to r95.11(3) of the Supreme Court Rules (SCR) and deciding that there were no circumstances, special or otherwise, which required the extension of time to be granted.
SCR95.11(1)(a) requires that a notice of appeal be set down within two months of the appeal being instituted. By SCR95.11(3)(a) an appeal not set down within six months from its institution lapses at that time unless the time for setting down has been extended before the time set by the rule expires or, where in special circumstances only, such time has been extended after six months.
Counsel for the Attorney-General has asked this court to accept that the Master should have dealt with the second application upon the basis that that application was lodged on 16 December 1997 not 19 December 1997. Accepting that, a proper construction of SCR95.11(3) required special circumstances to be made out on the second application since it was made more than six months after the institution of the appeal. A second application within the extended time is after the time limited by the rule for the setting down of the appeal.[1]
[1] Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (S5360, Lander J, 4 December 1995,
unreported) and Whelan v McKenzie (1995) 181 LSJS 273
There was no challenge to the competence of the appeal from the Master’s refusal of 23 June 1998, although reference was made to leave being required if the appeal was interlocutory. The court was invited to grant leave to the extent that leave was required. In my view, the matter is properly before this court without leave either because it relates to a final judgment and is to the Full Court or because of the order made by a single judge reserving this appeal for consideration of the Full Court.[2]
[2] SCR106.05
By his notice of appeal the appellant challenges the power of a Master to consider the application for extension of time. It is alleged that the appellant sought to have the application heard by a Judge of the court and that the Master wrongly refused to have it so dealt with. Reference is made in the grounds of appeal to possible errors by the Master with respect to his interpretation of s48 and s72 of the Supreme Court Act and SCR5 and SCR106.01. SCR106.01(3) authorises a Master to transact all such business as may be done transacted or exercised by a Judge in chambers. The rule provides some exceptions. The appellant’s argument was that these proceedings were within par(c) of the exceptions and properly identified as “proceedings on the Crown side of the court”. I reject that argument. The proceedings must be so to fall within the exception. They are not on the Crown side of the court and peculiar to it. The proceedings are an exercise of a statutory power which augments powers long vested in all courts to restrain abuses of processes before them.[3]
[3] See Attorney-General v van Reesma (1986) 43 SASR 170 and
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 313-320
The appellant also invited this court to classify the proceedings as on the Crown side for the purpose of the exemption from the Master’s jurisdiction. In my view that would be totally improper. The exception is not applicable to proceedings instituted by the Attorney pursuant to s39 of the Supreme Court Act. That power is a power conferred by statute with respect to proceedings in all courts of the State. It cannot be identified as a power merely with respect to proceedings on the Crown side of the court simply because the Attorney-General is an object of the power. “Proceedings on the Crown side of the court” refers to the prerogative and criminal jurisdiction of the Court of Queen’s Bench before 1873.[4] Reference to the jurisdiction in the exception in SCR106.01(3) is not expanded by a power conferred on the Attorney-General in this State by the enactment of s39 in 1935.[5] The statutory power is not invoked by a proceeding on the Crown side of the court. It does not involve the prerogative nor is it a criminal proceeding.
[4] See Blackstone’s Commentaries on the Laws of England, Vol IV at 265.
[5] That section can be traced back to the Vexatious Actions Act 1896 (UK) 59 & 60, Vict, Ch51
I also reject the submission made that the proceedings were quasi criminal in nature and thus within par(a) of the exceptions to the Master’s jurisdiction under SCR106.01(3). As already observed, the proceedings are not matters relating to criminal proceedings. Whilst par(a) must be read in conjunction with par(c) of SCR106.01(3) it does not go beyond criminal proceedings.
The appellant also suggested that the Master’s jurisdiction was lacking because of the provisions in par(f) of SCR106.01(3). By that provision summonses and applications under SCR63.01 to SCR63.03 are to be determined by a Judge where a party requests it. These proceedings are not proceedings of the kind referred to in those rules. The fact of that exception does not support the appellant’s submission of a lack of jurisdiction in the Master.
There is nothing in the submission that the Master may have erred in his general interpretation of s48 and s72 and SCR5 and SCR106.01. The Master had jurisdiction to consider the application. There was no relevant exception to the power to exercise the jurisdiction of the court exercisable by a Judge of the court in chambers.
The Master found cause to refuse the second extension. Those findings cannot be disturbed on appeal. There is no identifiable error in the Master’s reasons. There was material before the Master which entitled him to decide as he did. A further extension was not warranted given the circumstances established before him. They included the length of the delay and the fact that the appellant pursued other litigation at the expense of the appeal. The Master’s remarks indicated that the administration of the court’s business would be prejudiced by granting the application. He did not refuse the application by considering the appeal on its merits.[6] He did not err in law. The appeal must be dismissed.
[6] Jackamarra v Krakouer (1998) 72 ALJR 819 at 821[4]
DUGGAN J: I agree that this appeal should be dismissed for the reasons given by Prior J.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (S5360, Lander J,
4 December 1995, unreported) and Whelan v McKenzie (1995) 181 LSJS 273

SCR106.05
See Attorney-General v van Reesma (1986) 43 SASR 170 and
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 313-320
See Blackstone’s Commentaries on the Laws of England, Vol IV at 265.
That section can be traced back to the Vexatious Actions Act 1896 (UK)
59 & 60, Vict, Ch51
Jackamarra v Krakouer (1998) 72 ALJR 819 at 821[4]

[1999] SASC 114

24 March 1999