King v Smith

[2006] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Leave to Appeal in Private)

KING v SMITH

Judgment of The Full Court

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

10 April 2006

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT

An application to the Full Court for leave to appeal against a costs order made by the District Court - no issue of principle or matter of general importance - no reasonably arguable prospect of success - application refused.

Guardianship and Administration Act 1993 (SA) s 67, s 67(15a), s 70(1); District Court Act 1991 (SA) s 42A, s 42B, s 43(2), s 43(2)(c); Supreme Court Rules 1987 (SA) s 94.01A, s 94.02, s 94.03, referred to.

KING v SMITH
[2006] SASC 95

Full Court:  Doyle CJ, Bleby and White JJ

1. THE COURT: Mr King wishes to appeal to the Supreme Court, relying on s 70(1) of the Guardianship and Administration Act 1993 (SA) (“the Act”) against a decision by the District Court sitting in its administrative and disciplinary division (“the Court”): see s 42A and s 42B of the District Court Act 1991 (SA).

2. The decision was made by the Court on 14 November 2005. The Court dismissed an appeal by Mr King under s 67 of the Act against a decision by the Guardianship Board. The Court ordered Mr King to pay the costs of the appeal, the Court being satisfied that his conduct in relation to the appeal was “frivolous and vexatious”: see s 67(15a) of the Act.

3. Section 70 of the Act confers a right of appeal to the Supreme Court against a decision of the Court, subject to the grant of leave to appeal: s 70(1) of the Act.

4. The appeal to the Supreme Court lies to the Full Court: s 43(2)(c) of the District Court Act.  

5. Leave to appeal to the Supreme Court is to be sought from a single judge within 14 days of the making of the order under appeal:  r 94.01A of the Supreme Court Rules.  Mr King made his application within that period.  The Judge who heard the application refused leave to appeal.

6. Mr King has now exercised his right under r 94.02 of the Supreme Court Rules to seek leave to appeal from the Full Court.  His application was made within 14 days of the decision by the single Judge.

7. The application has been considered by the Court in private pursuant to r 94.03.  For that purpose the Court comprised Doyle CJ, Bleby J and White J.  The Court has considered the materials submitted by Mr King, including his handwritten submissions, and the reasons given by the single Judge.

8. Leave to appeal is usually granted only if the appellant relies upon grounds that are reasonably arguable, that is, grounds which have a reasonably arguable prospect of success.  Another requirement for a grant of leave, particularly in the case of an appeal to the Full Court, is that the matter raises an issue of principle, or a matter of some general importance.  The Full Court will not usually grant leave to appeal if the purpose is primarily to re-argue factual matters or discretionary matters decided by a court below.  Nor will it grant leave to appeal against a decision on costs, unless there is a real point of principle involved.

9. In his submissions, Mr King has not identified anything that casts any real doubt on the decision of the Court on matters other than costs.  Indeed, his own submissions indicate that by the time of the hearing of the appeal by the Court, he had recognised that changed circumstances relating to Mrs Smith, the subject of the proceedings before the Board, made his appeal to the Court inappropriate and unsustainable.  He himself acknowledges that he pursued the appeal mainly to enable him to oppose a threatened claim for costs that had been made by the solicitor for the respondent, at a directions hearing before the appeal to the Court was heard.

10. That, of course, was an unwise approach to take.  It was an unnecessary approach.  Mr King could have abandoned his appeal and could have opposed an order for costs on the basis that when the appeal was instituted there was good reason to bring it, and that it was only by reason of later changed circumstances that it had become appropriate to abandon the appeal.

11. It seems to have been this very decision by Mr King to pursue the appeal that caused the Court to order Mr King to pay the costs of the appeal.  The Court itself appears to have acknowledged that at the time of the proceedings before the Guardianship Board, there may have been some justification for Mr King pursuing the issues that he did pursue.  But the Court made the point that by the time of the appeal by Mr King the circumstances had changed, and that in those changed circumstances his pursuit of the appeal had been “frivolous and vexatious”.

12. As the single Judge says, no doubt Mr King was genuinely concerned about the welfare of Mrs Smith.  No doubt he had her interests at heart.  He had apparently helped her and her son in the past.  But pursuing an appeal that lacked substance meant that others involved in the appeal incurred costs that they should not have had to incur.

13. The submissions by Mr King do not really meet this basic point.  As the Court has noted, he could have abandoned his appeal and resisted a costs order on the basis that, when instituted, the appeal was appropriate.

14. Having regard to the circumstances, there is nothing raised by Mr King that suggests that the Court erred in the approach that it took to the issue of costs.  On the basis of what Mr King himself has said, it was open to the Board to conclude that his continued pursuit of the appeal was vexatious, even though from his point of view his motives might have been good motives.  In this Court’s view a grant of leave would simply lead to this Court re-examining the facts and re-considering the discretion that had to be exercised by the Court when it made the costs order.  And, as has already been indicated, Mr King has not met the basic problem he faces, which is that he himself acknowledges that he pursued the appeal mainly to avoid an order for costs.

15. In all the circumstances we consider that this is not an appropriate case for the grant of leave to appeal.  We order that leave to appeal be refused.