Maur v Winona Way Pty Ltd
[2013] SASC 1
•11 January 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MAUR v WINONA WAY PTY LTD & ANOR
[2013] SASC 1
Reasons for Decision of The Honourable Justice Nicholson
11 January 2013
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
Referral from Registrar for direction pursuant to Rule 53 of the Supreme Court Civil Rules 2006 (SA) that he reject and refuse the filing of a proposed notice of appeal to the Full Court by an unsuccessful appellant to a single Judge of this Court - whether the document, on its face, is an abuse of process.
Held: Proposed notice of appeal an abuse of process; Registrar directed to reject it for filing.
Supreme Court Civil Rules 2006 (SA) Rule 53, referred to.
Maur v Winona Way Pty Ltd T/As Tea Tree Gully Hotel & Anor [2012] SASC 135, [2011] SADC 87; Rana v Housing Trust of South Australia; Rana v Gregurev; Rana v Gregurev [2011] SASC 127; Staats v United States of America (1992) 66 ALJR 793; Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99; Re Davison (1997) 147 ALR 259; Manolakis v District Registrar (SA) (2008) 170 FCR 426; Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89; Eastman v Higgins (2007) 210 FLR 464; Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193; Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193; Ramsey v Skyring (1999) 164 ALR 378, considered.
MAUR v WINONA WAY PTY LTD & ANOR
[2013] SASC 1CIVIL
NICHOLSON J.
Introduction
Stephen Maur has sought to file a notice of appeal to the Full Court. He wishes to appeal against the summary dismissal, by a Judge of this court, of Mr Maur’s appeal against a judgment in the District Court, dismissing his claim against the defendants for damages on account of alleged negligence.[1]
[1] Maur v Winona Way Pty Ltd T/As Tea Tree Gully Hotel & Anor [2012] SASC 135; [2011] SADC 87.
Pursuant to Rule 53 of the Supreme Court Civil Rules 2006 (SA), the Registrar has referred to me the notice of appeal that Mr Maur wishes to file. Rule 6SCR 53 provides for a power to reject documents submitted for filing and the Registrar has asked whether or not I am prepared to direct him to reject Mr Maur’s proposed notice of appeal on the basis that it is, inter alia, an abuse of the process of the court.
The relevant principles have been helpfully summarised by Gray J in a recent decision of this court.[2] I, with respect, adopt that summary of principles as sufficient for present purposes.
[2] Rana v Housing Trust of South Australia; Rana v Gregurev; Rana v Gregurev [2011] SASC 127 (Gray J).
Rule 53 provides for power to reject documents submitted for filing. The rule relevantly provides:
(1) A document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.
(2) If it appears to the Registrar that a document submitted for filing is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
(3) If the Judge or Master so directs, the Registrar will reject the document.
(4) If it appears to the Court that a document that is an abuse of the process of the Court has been filed in the Court, the Court may direct that it be struck from the file.
The purpose of rule 53 is to ensure that the resources of the court are not exhausted by pointless and misconceived litigation and that in the interests of justice, defendants are not put to expense and stress in such cases.[3] The rule has been held to apply to documents that are incoherent such that parties could not know the case being made against them.[4] Under a Federal Court rule in comparable terms, the actual rejection of the document by the Registrar is not subject to judicial review.[5] The direction made under rule 53(4), is an administrative act not subject to appeal.[6]
Rule 53(1) as extracted, provides that a document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious. The terms “scandalous, frivolous or vexatious” in this context are to be given a wide meaning.[7] If the Registrar forms the opinion that the document is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
In Eastman v Higgins,[8] Lander J considered the correct approach to be taken by the Judge or Master in respect of a rule not materially different from rule 53. In that case, Lander J observed that the question raised in the rule itself must be addressed, that is: does the document appear, on its face, to be an abuse of the process of the Court?[9]
I considered rule 53 in Westwill Pty Ltd & Ors v Byrt & Ors,[10] where I concluded:[11]
Rule 53 is, in part, a reflection of the need for courts to protect their resources, while dealing with cases justly. This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.[12] While a court is occupied dealing with matters devoid of merit, meritorious claims are left wanting access to the courts.[13] On the other hand, a fundamental rule of law is that all persons have access to courts.[14] Regardless, general interests of justice and the public interest combine, to require that there be procedures for ensuring that a court can prevent the institution of frivolous or vexatious proceedings, in the sense that those proceedings cannot succeed.[15] It is however a power which should be exercised with care.
[3] Staats v United States of America (1992) 66 ALJR 793; see further my [Gray J’s] treatment of this rule in Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.
[4] Re Davison (1997) 147 ALR 259.
[5] Manolakis v District Registrar (SA) (2008) 170 FCR 426.
[6] Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89, [32]-[33].
[7] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [5].
[8] Eastman v Higgins (2007) 210 FLR 464.
[9] As set out by me in Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [7].
[10] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.
[11] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [13].
[12] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88, 93 considered in Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [31].
[13] Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [32].
[14] See Ramsey v Skyring (1999) 164 ALR 378.
[15] Staats v United States of America (1992) 66 ALJR 793 where Deane J was considering a Rule in the High Court Rules comparable [in] terms to rule 53.
The terms of the proposed notice of appeal
Mr Maur pleads his position in a number of ways under the various headings set out in the prescribed form for a notice of appeal. He sufficiently identifies the judgment against which he appeals and sufficiently identifies that it is the whole of the judgment against which the proposed appeal is to be brought. However, the balance of the document is incoherent and incomprehensible.
Under the heading “The appellant seeks permission for the appeal on the following grounds” Mr Maur has written:
Assault attack the hotel security hotel staff security commited the assault of damages assaults of negligences from the start all the orders change.
Under the heading “The appellant seeks an extension of time within which to appeal, upon the following grounds” Mr Maur has written:
Solicitors details time liability obtain liable, payment, compensation.
Bill 341,000-00 owing.
All the orders change.
Under the heading “The grounds of appeal are” Mr Maur has written:
A victim of negligences, hotel staff committed the assaults of negligences
Injuries, ankle, foot, knee, leg.
The assault of damages 26-4-2002
April the Tea Tree Gully Hotel North East Road. Hotel staff security committed thes offences negligences from the beginning by jumping on left ankle, foot, knee, leg
The assault of the damages injuries costs payment compensation liable.
Under the heading “The appellant seeks the following orders” Mr Maur has written:
The appellant seeks the following orders that all the orders changes
Reject objection all the orders in the dates of the 6-8-2012.
In relations to respondents defendants in of thes applications to the hearings of dates of the orders all stop and ends all costs with orders all be lifted.
The following orders compensation damages for payment of and costs claim legal costs loss of income and interests respondents in conjunction that the orders be made receive all costs all together, Winona Way Pty Ltd T-As Tea Tree Gully Hotel, with Total Control Agencies Pty Ltd. The full amount compensation, $341,000-00, or if a increase more than this, a order for more costs.
Consideration
The gist of the document might be readily understood or inferred, namely that Mr Maur alleges he was the victim of an attack at the hands of hotel security staff, as a result of which he suffered physical injury.[16] However, but for this, the document is fairly and properly to be described as incoherent and lacking sense. It offers no detail sufficient to allow the defendants to appreciate the case they are to meet, that is, why the judgment to be appealed from is said to be in error and should be set aside. The proposed notice of appeal does not identify a relevant ground of appeal. The assertion that Mr Maur was the victim of an assault and is entitled to damages is not a ground of appeal. The document does not purport to set out findings or aspects of the reasoning in either the trial judgment or the judgment of this court, summarily dismissing his appeal, which Mr Maur maintains involved error nor does it identify the basis of any asserted error. Any appeal based on a notice of appeal in this form would be doomed to fail.
[16] At the trial Mr Maur's case was confined to an allegation that security staff assaulted him by deliberately stamping on his foot.
In the circumstances, the proposed notice of appeal on its face, if filed, would constitute an abuse of process of the court. I direct the Registrar to reject the document. I direct that a copy of these reasons be sent to Mr Maur.
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