Commonwealth Bank v Heinrich (No 2) - [2003] SASC 436

COMMONWEALTH BANK OF AUSTRALIA & ORS v
STEPHEN GLENN HEINRICH (NO 2)
[2003] SASC 436
Civil

DEBELLE J On 12 September 2003 I made orders on the application of the plaintiffs permanently staying prosecutions commenced in the Adelaide Magistrates Court by the defendant. I also made an order pursuant to s 39(1) of the Supreme Court Act 1935 (“the Act”) that the defendant be prohibited from instituting further proceedings without leave of this Court.
On 25 September 2003 the defendant applied for an order granting leave to appeal to the Full Court. On the same day he purported to file a Notice of Appeal to the Full Court. A clerk in the Registry did not permit the Notice of Appeal to be filed. However, a copy of it was placed on the Court’s file.
The application of 25 September 2003 was filed when I was on leave. I did not return until 3 November. My associate attempted to list the application in November but the defendant was not available until 9 December.
Mr Heinrich’s application for leave to appeal and his purported appeal give rise to a number of issues for resolution. They are:
1.Does Mr Heinrich have a right of appeal from both the order made pursuant to s 39(1) of the Act and from the order permanently staying the proceedings in the Magistrates Court?
2.If yes, does Mr Heinrich require leave of the Court pursuant to s 39(1) of the Act to commence each appeal?
3.If the answer to question 2 is no, is either the order made pursuant to s 39(1) or the order permanently staying the proceedings in the Magistrates Court an interlocutory order or interlocutory judgment within the meaning of s 50(3) of the Act so that no appeal lies unless Mr Heinrich obtains leave to appeal?
4.If the answer to question 3 is yes, should leave to appeal be granted in either appeal?
5.If Mr Heinrich has a right of appeal and if he does not require leave to appeal, should an extension of time be granted in which to file and serve the Notice of Appeal against either order? Although Mr Heinrich has not formally applied for an extension of time within which to appeal, it will assist him if I proceed on the footing that he made an oral application to do so.
I turn to examine each issue. Before doing so, I acknowledge the assistance I have had from the reasons of Chernov JA in Kay v Attorney-General [2000] 2 VR 436.
1. A Right of Appeal?
Section 50(1) of the Act provides a right of appeal to the Full Court “against every judgment ..., order, or direction of a judge, whether in court or chambers” subject to three listed exceptions. None of the exceptions apply in this case. Section 50(1) is expressed in wide terms. It is clear that Mr Heinrich has a right of appeal against each of the orders made on 12 March 2003.
2. Is leave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] SASC 436
Decision Date: 23 December 2003

CaseChat Overview and Summary

Commonwealth Bank of Australia and Others v Stephen Glenn Heinrich (No 2) involved a legal dispute in which the Commonwealth Bank sought to permanently stay certain prosecutions against Mr Heinrich, who had been engaging in repeated legal proceedings. The Supreme Court of South Australia was tasked with deciding several key issues concerning Mr Heinrich's right to appeal and the procedural requirements involved. These issues included whether Mr Heinrich had the right to appeal both the order made under section 39(1) of the Supreme Court Act 1935 and the order permanently staying the prosecutions, whether leave was necessary for such an appeal, and if so, whether leave should be granted. The court also considered whether Mr Heinrich should be granted an extension of time to file and serve the Notice of Appeal.

The court found that Mr Heinrich had a right to appeal both orders as the exceptions under section 50(1) of the Act did not apply. However, the court determined that Mr Heinrich did not require leave to appeal from an order made under section 39(1) of the Act, but he did need leave to appeal from an interlocutory order. The court held that the order under section 39(1) was interlocutory because it could be varied or revoked, unlike a final order. Despite this, the order permanently staying the prosecutions was final, so no leave was required for an appeal from that order. The court further examined whether leave to appeal should be granted and whether an extension of time to appeal should be granted, considering factors such as the length of the delay, the reason for the delay, the presence of an arguable case, and the extent of prejudice to the respondent. Ultimately, the court found that there was no merit in Mr Heinrich's grounds of appeal, and thus, both the leave to appeal and the extension of time were denied. The final orders of the court were to refuse leave to appeal and to dismiss the application to extend the time within which to appeal.

Orders