Huilgol v Police No. Scciv-02-209

[2002] SASC 427

HUILGOL  v  POLICE
[2002] SASC 427

Full Court:  Doyle CJ, Lander and Bleby JJ (ex tempore)

1. DOYLE CJ, LANDER & BLEBY JJ:             This is an application to the Full Court for leave to appeal against a decision by a Judge of this Court on 30 April 2002.

2. The Judge refused leave to appeal on 14 August 2002.

3. The application for leave to appeal was filed on 10 December 2002.

4. The Judge heard an appeal to the Supreme Court by Ms Huilgol against orders made by a Magistrate on a review of an enforcement order made under s 13(2) of the Expiation of Offences Act 1996 (SA) (“the Act”). The enforcement order was made by a Registrar.

5. That order was not subject to appeal, but was the subject of a review under s 14(1) of the Act. Ms Huilgol sought a review, and, as we have said, a Magistrate confirmed the order on review, in exercise of powers conferred by s 14(4)(a) of the Act.

6. Section 14(6) of the Act provides:

   “A decision of the Court made on a review of an enforcement order is not subject to appeal by the person liable under the order (but nothing in this section affects the person’s right of appeal against the conviction of the offence or offences to which the order relates).”

7. The Judge said that having regard to this provision, there could be no appeal against the Magistrate’s decision made on a review of the relevant enforcement order or orders.  He dismissed the appeal.  It may be that he should have struck the appeal out as incompetent.

8. An appeal lies to the Full Court against the decision of the Judge, by virtue of s 50(1) of the Supreme Court Act 1935 (SA). But by proviso (3)(a) of s 50(1), an appeal does not lie without leave from an order on appeal from the Magistrates Court. The order was made on a purported appeal from that Court.

9. The application for leave to appeal is made under r 94.01 of the Supreme Court Rules, and being made to the Full Court as a result of the Judge having refused leave, is to be considered privately by the Full Court under r 94.03.  The Court has considered the written submissions made by Ms Huilgol.

10. In the light of the information provided by Ms Huilgol relating to her health, the Court extends the time within which the application for leave to appeal may be made to 10 December 2002.

11. The application for leave to appeal raises a point of principle, which is whether the order made on review could be taken on appeal to the Supreme Court. But the decision of the Judge is plainly right. The purported appeal to this Court is clearly barred by s 14(6) of the Act.

12. Accordingly, it is appropriate to refuse leave to appeal, and we so order.