Draoui v District Court of South Australia

[2011] SASCFC 15

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

DRAOUI v DISTRICT COURT OF SOUTH AUSTRALIA & ANOR

[2011] SASCFC 15

Judgment of The Full Court

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

18 March 2011

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

Application for permission to appeal considered in private - judicial review proceedings - District Court Judge refused to disqualify himself on the grounds of apprehended bias - application for permission to proceed with judicial review proceedings adjourned - whether decision by District Court Judge an appealable decision - whether Judge on application for permission to proceed took into account an irrelevant consideration - whether other grounds of appeal reasonably arguable - application for permission to appeal refused.

Criminal Law Consolidation Act 1935 (SA) s 269O and s 269P; Supreme Court Civil Rules 2006 r 290 and r 290(6), referred to.

DRAOUI v DISTRICT COURT OF SOUTH AUSTRALIA & ANOR
[2011] SASCFC 15

Full Court:      Doyle CJ, White and Peek JJ

1. THE COURT:      This is an application for permission to appeal to the Full Court.

2. A Judge of this Court considered an application by Mr Draoui for permission to proceed in proceedings by way of judicial review. In those proceedings Mr Draoui claimed an order quashing an order or decision by a District Court Judge declining to disqualify himself from hearing an application by Mr Draoui under s 269P of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The application to the District Court Judge was for an order revoking a supervision order made by that District Court Judge in September 2007 pursuant to s 269O of the CLCA.

3. The Supreme Court Judge declined to grant permission to proceed. The Judge did not dismiss the application. The Judge adjourned the application for a sufficient period to enable Mr Draoui’s application under s 269P of the CLCA to be heard and determined by the District Court Judge. The Supreme Court Judge obviously contemplated that the sensible course was for the application to proceed before the District Court Judge, and then for all complaints by Mr Draoui arising from that to be heard at the one time. As the Judge said: Draoui v District Court of South Australia & Anor [2011] SASC 11 at [24]:

   [24]This Court does not have the benefit of any considered reasons by the judge after a hearing when all of the relevant material has been considered and both parties have been heard.  This Court should exercise restraint and not interfere in proceedings at an interlocutory stage unless the appearance of bias is patent.  It is not appropriate or necessary at this stage to engage in any detailed analysis or discussion of the issues which might arise for consideration if the applicant wishes to pursue the application at a later stage, however I do not accept that it has been so clearly established here that the point has been reached where a fair-minded observer might think that the judge might not bring an impartial and unprejudiced mind to the issues before him.

4. Mr Draoui now applies for permission to appeal to the Full Court against this decision by the Supreme Court Judge.

5. The application has been considered by the Court comprising Doyle CJ, White and Peek JJ.  The Court has considered the application pursuant to r 290 of the Supreme Court Civil Rules 2006 (SA).  Pursuant to r 290(6) the Court has considered the application without hearing from the respondent.

6. The Court considers that the application for permission to appeal raises no reasonably arguable ground, and should be refused.

7. First, the grounds on which the complaint is made of an apprehension of bias, in the sense of an adverse disposition on the part of the District Court Judge, is tenuous.  It is based on the manner in which, at earlier stages of proceedings relating to the original supervision order, the District Court Judge dealt with applications by Mr Draoui, including applications that the District Court Judge disqualify himself.   We do not need to decide at this stage whether that complaint is reasonably arguable.

8. Second, it is by no means clear that a decision by the District Court Judge to decline to disqualify himself is a decision that can be challenged on appeal, unless the challenge is made as part of an appeal against an order which can itself be challenged on appeal.  There is authority supporting the view that a decision by a Judge declining to disqualify himself or herself is not of itself an appealable decision.  However, once again, it is not necessary to decide that point.

9. Third, Mr Draoui points to the inconvenience and inefficiency of proceeding before the District Court Judge and later finding that a challenge on the grounds of an apprehension of bias succeeds.  But, as the Supreme Court Judge pointed out, Mr Draoui’s preferred course of action involves disrupting the proceedings at an interlocutory stage.  It is an application which could, in the end, leave the matter exactly where it is now, that is, in the hands of the District Court Judge.

10. Mr Draoui complains that the Supreme Court Judge took into account listing practices in the District Court when there was no evidence about the matter, and, he argues, this was an irrelevant matter.  We disagree.  It is well known that the practice of the Court is to list applications relating to supervision orders before the Judge who originally made the order, when that is practical.  There are good reasons for doing so.  The practice is well known.  There was no need to invite submissions on the point.  Counsel for Mr Draoui, who practises in the jurisdiction, could not have been unaware of the well established practice.

11. In one sense it can be said, we agree, that the Judge’s order is equivalent to an order refusing relief.  But in fact the Judge’s order leaves alive the application for relief, and merely postpones the consideration of it.

12. In our opinion it is not reasonably arguable that the Judge was wrong in taking the course that the Judge did.  We dismiss the application for permission to appeal.

13. We add, so that it is not overlooked, that we have not had to consider whether or not the challenge to the decision by the District Court Judge can accurately be described as a challenge to jurisdiction, or as raising an error of law on the face of the record.  If, as is likely, the record contains nothing more than a record of the District Court Judge declining to disqualify himself, it is questionable whether error of law on the face of the record can be shown.  If the decision was one within jurisdiction, even if wrong, then once again it cannot be challenged in the way in which Mr Draoui seeks to challenge it.

14. In any event, the application for permission to appeal is refused.