Dielos v Morgan

[2006] SASC 366

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Leave to Appeal in Private)

DIELOS v MORGAN & ANOR

[2006] SASC 366

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice White)

7 December 2006

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW

Application for permission to appeal against an order of a Judge of the Supreme Court refusing to extend the time within which an appeal might be brought against a decision of a Magistrate entering summary judgment - re argument of matters considered below - no arguable error made out - permission to appeal refused.

Supreme Court Act 1937 (SA) s 50(4)(a)(ii); Supreme Court Rules r 285(10(a), referred to.
Dielos v Morgan & Anor [2006] SASC 297, discussed.

DIELOS v MORGAN & ANOR
[2006] SASC 366

Full Court:  Doyle CJ, Debelle and White JJ

1. THE COURT:       Mr Dielos has filed a Notice of Appeal appealing against a decision by a Judge of this Court.

2. Mr Dielos wishes to appeal to the Full Court. The appeal lies to the Full Court only with permission: s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA). Mr Dielos has sought permission to appeal in his Notice of Appeal. He is permitted to do so by r 285(1)(a) of the Supreme Court Rules. 

3. The Notice of Appeal was received by the Registry on 19 October 2006, but was not treated as filed until 20 October 2006, after an application for waiver of fees had been dealt with.  The time within which to file the Notice of Appeal expired on 19 October 2006.  Under the circumstances, the Court is prepared to extend the time for the filing of the Notice of Appeal to 20 October 2006.

4. Mr Dielos has not filed a summary of argument in support of his application for permission to appeal.  A letter was sent to him by the Registry on 23 October 2006 reminding him of his obligation in that respect.  However, on 10 November 2006 he filed an affidavit which contained submissions in support of his Notice of Appeal, which the Court is prepared to treat as also supporting his application for permission to appeal.

5. The decision by the single Judge was a decision refusing to extend the time within which an appeal might be brought against a decision of a Magistrate entering summary judgment in civil proceedings.  The single Judge provided written reasons for his decision:  Dielos v Morgan& Anor [2006] SASC 297. The single Judge sets out the reasons for his decision in particular at [19]-[20]. The Judge said that there had been a substantial delay by Mr Dielos in instituting the appeal (a delay for a period of seven months), an inadequate explanation for the delay, and a failure to demonstrate that the grounds of appeal raised any issue of substance.

6. The Court has considered the Notice of Appeal, the affidavit filed by Mr Dielos and the reasons of the single judge.

7. The Court is unanimously of the opinion that permission to appeal should be refused.  If permission were granted, it would result in nothing more than the re‑argument of the matters that the single Judge has already considered.  The material filed by Mr Dielos does not demonstrate any arguable error on the part of the Judge.  Nor is there any satisfactory explanation for the delay in instituting the original appeal to this Court.

8. Accordingly, the Court is unanimously of the opinion that permission to appeal should be refused, and so orders.