Martincic & Anor v Ethnic Broadcasters Incorporated - [2024] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
MARTINCIC & ANOR v ETHNIC BROADCASTERS INCORPORATED
[2024] SASC 15
Judgment of the Honourable Justice Kimber
5 February 2024
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
The appellants appeal interlocutory orders made by a Magistrate in a proceeding that is a minor civil action. In the minor civil action, the appellants claim that the respondent has engaged in acts which are inappropriate or oppressive. The appellants filed interlocutory applications in the Magistrates Court seeking to strike out the Defence of the respondent and transfer the proceedings to the District Court or the Supreme Court. The Magistrate adjourned both applications and they are yet to be determined. At the same time, the Magistrate made some other orders.
Held, dismissing the appeal:
1.The appeal is not competent. The proceedings in the Magistrates Court are a minor civil action. There is no right of appeal to the Supreme Court in a minor civil action.

MARTINCIC & ANOR v ETHNIC BROADCASTERS INCORPORATED
[2024] SASC 15
Magistrates Appeal: Civil
KIMBER J:

This is an appeal from orders made in the Magistrates Court.
The first appellant is Dmitry Martincic (by litigation guardians Zlatan Martincic and Olga Shmakova) and the second appellant is Zlatan Martincic. The respondent is Ethnic Broadcasters Incorporated.
On 12 September 2023, a Magistrate made orders with respect to two interlocutory applications filed by the appellants. The first such application is FDN 21 and is an application to strike out a Defence filed by the respondent on 21 August 2023. The second such application is FDN 23 and is an application to seek an order, among other things, that the proceedings be transferred to the District Court of South Australia or to this Court. The Magistrate has not determined either interlocutory application. To the contrary, on 12 September 2023, the Magistrate ordered that both applications be adjourned to 14 November 2023. No hearing took place on 14 November 2023. That is because, having filed a Notice of Appeal in this Court on 3 October 2023, the appellants filed an interlocutory application in the Magistrates Court seeking that the proceedings in that Court not be advanced until this appeal was determined. That order was made by a Magistrate on 25 October 2023.
The orders adjourning FDN 21 and FDN 23 were not the only orders made by the Magistrate on 12 September 2023. The Magistrate also vacated some orders previously made and made orders with respect to the filing of an amended Claim, an amended Defence and any Reply to the amended Defence.
I mean no disrespect by observing that the submissions made by Mr Zlatan Martincic in this Court on behalf of both appellants reflect both that he is not legally trained and his confusion about why the orders just mentioned were made if FDN 21 is yet to be determined. It is not necessary for me to determine why the Magistrate took that approach and I have not attempted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] SASC 15
Decision Date: 5 February 2024

CaseChat Overview and Summary

Martincic & Anor v Ethnic Broadcasters Incorporated is an appeal from the Magistrates Court of South Australia to the Supreme Court, concerning a dispute related to the enforcement of fines and the interpretation of relevant legislation. The appeal revolves around whether certain orders made by the Magistrate are subject to review under section 38 of the Magistrates Court Act. The appellants argue that the Magistrate's orders are reviewable, while the respondent contends that they are not.

The central legal issue the court had to resolve was the extent of the reviewable nature of orders made by the Magistrate under section 38 of the Magistrates Court Act. Specifically, the court needed to determine whether the orders in question were indeed subject to such review, particularly in light of the Magistrate's pending decisions on certain matters. The court also had to consider the implications of its interpretation on the appellants' rights and the respondent's obligations under the relevant statutory framework.

The Supreme Court, in dismissing the appeal, made it clear that its analysis of the legislative provisions should not be construed as a definitive stance on whether the Magistrate's orders are amendable to review under section 38 of the MCA. The court explicitly refrained from expressing any opinion on this matter. However, it highlighted that the Magistrate had not yet determined certain issues, which were crucial to the review process. Consequently, the appeal was dismissed without reaching a conclusive decision on the reviewability of the orders.

There were no further orders made by the court beyond dismissing the appeal. The court's decision left the pending matters within the Magistrates Court to be resolved in due course.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

My analysis of the above legislative provisions should not be taken to suggest that I am of the view that any order made to date in the Magistrates Court is amendable to review pursuant to s 38 of the MCA. I express no view about that. Nevertheless, I note that, as already set out, the Magistrate is yet to determine either FDN 21 or FDN 23. Conclusion The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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