Martincic & Anor v Ethnic Broadcasters Inc

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

MARTINCIC & ANOR v ETHNIC BROADCASTERS INC

[2024] SASCA 33

Judgment of the Honourable President Livesey  

22 March 2024

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - NOTICE OF APPEAL

The applicants seek leave to appeal from the Court of Appeal.  A Supreme Court Judge dismissed their appeal from a Magistrate on the basis that it was not competent.  The proceedings concern a claim under the Associations Incorporation Act 1985 (SA) which is defined as a “minor civil action” for which there is no right of appeal to the Supreme Court pursuant to s 38 of the Magistrates Court Act 1991 (SA).

The applicants filed a notice of appeal. The notice of appeal was seriously defective and did not conform with the rules of court, particularly r 214.2 of the Uniform Civil Rules 2020 (SA).  The applicants were advised by the Court to consider the relevant rules and to address four questions in an amended notice of appeal:

(1)What order is challenged?

(2)What error was made?

(3)Why should leave to appeal be granted?

(4)What orders are sought on appeal?

The amended notice of appeal instead added more than 20 new paragraphs and identified 22 errors made by judicial officers in the Magistrates Court, the District Court and the Supreme Court over the last 12 months.

HELD (the Court) striking out the applicants’ amended notice of appeal, with costs:

1. The amended notice of appeal is discursive and difficult to follow.  It does not comply with the rules in fundamental respects.  It does not serve its essential purpose because it does not identify the matters required for the proper determination of an application for leave to appeal to the Court of Appeal. In consequence, there will be inevitable confusion and delay associated with the hearing and determination of this matter. 

2.The court must ensure that an unrepresented litigant is apprised of relevant rights and duties and be vigilant to keep the proceedings free from error or misunderstanding.  Whilst some assistance may need to be given, the court cannot conduct the case for the unrepresented litigant.  It is fundamental that any assistance given by the court must not detract from the neutrality of the court.

3. The Uniform Civil Rules 2020 (SA) apply to all litigants in the Court of Appeal, whether or not they are legally represented. Compliance with the rules is necessary so as to provide procedural fairness to the opposing litigant and to avoid the limited resources of this Court being wasted on time-consuming hearings during which whether the party in default has a case is explored and attempts are made to articulate it.

4. It is not appropriate to adjourn the matter and order that a further amended notice of appeal be filed.  The notice of appeal must be struck out.  The applicants must pay the respondent’s costs, fixed in the amount of $1,500, payable within 60 days.

Associations Incorporation Act