Lyberopoulos v State Govt Ins Commission and Ors No. Scgrg-98-932 Judgment No. S47

[1999] SASC 47

LYBEROPOULOS v STATE GOVERNMENT
INSURANCE COMMISSION and ORS
[1999] SASC 47

Civil

1. PERRY J.          This is an application to strike out as incompetent a purported notice of appeal to the Full Court.

2. By a judgment delivered on 23 September 1998, I dismissed an appeal by Mr Lyberopoulos to this Court against orders made by a magistrate, Mr K.A. Millard SM, sitting in the civil jurisdiction of the Magistrates Court, pursuant to which the magistrate refused an application for a review of taxation of costs awarded against Mr Lyberopoulos in an unsuccessful civil action brought by him.

3. At the same time, the learned magistrate refused an application to adjourn a claim by Mr Lyberopoulos for orders pursuant to s37(2) of the Magistrates Court Act 1991 directed against two former solicitors, Mr Pertl and Mr Svilans. The applications pursuant to s37(2) were brought in consequence of alleged failings on the part of Mr Pertl and Mr Svilans in their handling of Mr Lyberopoulos’ claim, and the proceedings brought to pursue it, which in turn resulted in the adverse order for costs against him.

4. The bill of costs was taxed by Mr K.J. Prescott SM on 20 August 1993 and allowed $36,016.27.

5. On 11 June 1998. Mr K.A. Millard SM held that he had no jurisdiction on an application made to that end by Mr Lymberopoulos to “review” that taxation of costs.

6. The procedure for the taxation of costs in the Magistrates Court is set out in the Magistrates Court (Civil) Rules 1992, and in particular in MCR R 108 which provides:

   “1..... The court may tax costs and allow costs in respect of the taxation.”

7. Costs in that jurisdiction may be taxed by a registrar or a magistrate.  MCR R 112 provides for an appeal from the registrar to a magistrate.  It follows that if the registrar had taxed the costs, there would have been an appeal to a magistrate.  However, given that the costs were taxed in the first instance by a magistrate, the question then arises as to how any right of appeal from that decision might be exercised.

8. It seems likely that in such a case the decision on the taxation of costs by Mr Prescott SM was a “judgment” within the meaning of s40 of the Magistrates Court Act 1991. “Judgment” in that Act is defined in s3(1) to mean “a judgment, order or decision and includes an interlocutory judgment or order”.

9. Section 40(2) of the Magistrates Court Act 1991 provides that if the rules of the Supreme Court so require, the right of appeal is conditioned by a requirement to obtain leave. R 96B of the Supreme Court Rules is the rule which deals with appeals from a magistrates court civil jurisdiction. R 96B.02(1) provides that an interlocutory appeal cannot proceed in the Supreme Court unless the magistrate has certified that it is sufficiently important to justify this Court intervening, or unless leave has been obtained from the Supreme Court. An appeal against a magistrate that he had no jurisdiction to review a taxation of costs is an interlocutory appeal.

10. In the judgment pronounced by me on 23 September 1998 I state that Mr Millard SM “gave leave to appeal to the Supreme Court against his order”.  Although I use the expression “leave”, I assume that whatever Mr Millard SM did (the record is not clear), I must have treated it as equivalent to a certification under R 96B.02.  At all events, the appeal in fact proceeded before me, so that is now a matter of history.

11. In the result, any question of a further appeal comes within SCR R 96B.05 which provides that when an appeal to a single judge was subject to leave being granted for that appeal, no further appeal is to be taken to the Full Court against the decision of the single judge, unless the single judge or the Full Court grants leave pursuant to R 94.

12. Under SCR R 94, and in particular R 94.1(1), leave might have been sought at the time I gave judgment, or subsequently on ex parte application to me or to the Full Court within fourteen days of delivery of the judgment.

13. Mr Lymberopoulos’ notice of appeal is dated 7 October 1998 (Supreme Court file document No 13).  By a notice of application dated 16 November 1998, Ward & Partners, on behalf of SGIC, applied pursuant to SCR R 95.08 for an order dismissing the appeal as incompetent.

14. Clearly, it is incompetent in that it was lodged without leave being sought or obtained.

15. Even if I treat the notice as an application for leave to appeal, and even if I extend the time within which the application for leave may be made, I would dismiss the application.

16. As is pointed out in a decision to which I was referred, Janiar Pty Ltd v Ives:[1]

    “..... normally where an appeal is not referred by a single judge direct to the Full Court, the Full Court will not thereafter entertain an appeal against the decision of the single judge unless the appeal discloses some matter of general importance or it is necessary to avert some plain injustice.”

    [1]   Full Court, 26 November 1993, unreported, judgment No S4288 at 9.

17. Neither of those considerations applies here.

18. So that, in those circumstances, the appropriate order would be to strike out the purported notice and grounds of appeal.

19. That application for an order pursuant to s37(2) was dismissed by Mr Millard SM in the circumstances referred to in my ex tempore reasons dated 23 September 1998. The appeal to me by Mr Lymberopoulos against that dismissal likewise required leave, and furthermore, leave would be required under the Supreme Court Rules to which I have already referred for any further appeal to the Full Court from the decision pronounced me on 23 September 1998.

20. Assuming that the “notice of grounds of appeal” filed on 23 October 1998, being court file document No 13, applies likewise to my decision insofar as it relates to the appeal to me from the dismissal of the s37 proceedings, for similar reasons, I would strike out the purported appeal.

21. In the result then, the purported notice of appeal to which I have referred, filed 23 October 1998, being court file document No 13, is struck out as incompetent.

[AFTER HEARING THE PARTIES AS TO COSTS]

1. I order that the appellant, Mr Lyberopoulos, pay the costs of SGIC of and in relation to the application, to be taxed.

JUDGMENT CITATION

1. Full Court, 26 November 1993, unreported, judgment No S4288 at 9.