Enayati v Alinejad

[2004] SASC 191

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Leave to Appeal in Private)

ENAYATI v ALINEJAD

Judgment of The Full Court

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

2 July 2004

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

Application for leave to appeal in private - application for leave refused.

Supreme Court Rules r 94.03, referred to.

ENAYATI v ALINEJAD
[2004] SASC 191

Application for Leave to Appeal in Private

1. Doyle CJ, Perry and White JJ                This is an application for leave to appeal to the Full Court against a decision by a Judge of the Supreme Court.

2. The Judge dismissed an appeal against a decision by a Magistrate.  The Magistrate had dismissed a claim by the applicant against the respondent for money said to be owing by the respondent to the applicant.  The claim arose from three separate transactions between the applicant and the respondent in 2002.

3. The Court has considered the application for leave to appeal.  It has done so pursuant to r 94.03 of the Supreme Court Rules.  The Court has considered the reasons of the Judge for dismissing the appeal, the record of the application made to the Judge for leave to appeal, her reasons for refusing leave to appeal, and the written summary of argument provided by Mr Enayati.

4. The Court will usually grant leave to appeal for the Full Court only if it is reasonably arguable that the Judge has made a mistake.  In addition, the Court does not readily grant leave to appeal when the only issue is one of fact, and the appeal would involve nothing more than rearguing the questions of fact already argued before the Judge.

5. In the present case the Magistrate dismissed Mr Enayati’s claim against Mr Alinejad because, after hearing the evidence on each side, she was not satisfied that Mr Enayati had proved his claim.  The decision turned entirely on the facts, and it appears to be a case in which the question of credibility was important.  The Judge found no error of any significance in the Magistrate’s reasons.  The argument before the Judge was that the Magistrate should have believed the applicant.  The Judge refused leave to appeal because the case was one that turned entirely on the facts.

6. It follows that if leave were to be granted, the appeal would be one which involved no more than a reargument on the facts.  It is also a case in which the Magistrate’s view of credibility was important, and it is difficult for a court of appeal to set aside a decision based on a conclusion as to credit.  That suggests that this is not an appropriate case for the grant of leave.  As well, in his written summary of argument Mr Enayati has not raised any point that appears to be reasonably arguable.  He complains of some errors of fact by the Magistrate, but the Judge reviewed the evidence before the Magistrate and the Magistrate’s reasons, and found no significant error.  He complains that the Judge gave her judgment immediately after the appeal was argued before her.  He suggests that that indicated either that the Judge had made up her mind in advance, or had not considered properly the arguments put to the Judge.  There is nothing in either of these points.  It is common for judges to give their decision at the conclusion of the argument, often with the assistance of notes, and to do so does not suggest in any way that the judge has not given proper consideration to the argument.

7. We consider that the appeal has no reasonable prospects of success, and accordingly we refuse leave to appeal.