Mallios v Commissioner of Police (No 2)

In Mallios v Commissioner of Police (No 2), the applicant appealed against a decision made by a magistrate to refuse to set aside a notice of licence disqualification or suspension issued by the respondent. The applicant, who had been driving a motor vehicle, was required to submit to a drug screening test under the Road Traffic Act 1961 (SA). He refused to comply with the directions of the police officer. The respondent issued a notice of licence disqualification or suspension to the applicant. The applicant sought to have the notice set aside. The magistrate refused the application. The applicant then applied for leave to appeal to the Supreme Court of South Australia. The appeal raises issues about the availability of evidence and the power to proceed in the absence of a party. The court considered the procedural history of the matter, including the notice given to the applicant of the time and date of the hearing and the two earlier adjournments granted to the applicant. The court found that it was appropriate to proceed in the absence of the applicant. The court also considered the material on the Magistrates Court file, including the three affidavits sworn and filed in the proceeding and the notice of licence disqualification or suspension issued to the applicant. The court found that it was appropriate to proceed on the basis that the applicant would have wished to rely on those affidavits.

The court found that the judgment under appeal is an interlocutory judgment. It found that the appeal is governed by s 42 of the Magistrates Court Act 1991 (SA), rather than s 40. The court found that the applicant had not satisfied it that there were grounds for granting leave to appeal. The court found that the appeal should be dismissed. The court found that the applicant had not established any error of law or fact that would warrant interference with the decision of the magistrate. The court found that the magistrate had correctly considered the relevant evidence and had applied the correct legal principles. The court found that the decision of the magistrate was not open to challenge.

The court made an order dismissing the appeal and affirming the decision of the magistrate. The court made no order as to costs.