Miojlic v City of Onkaparinga Council
[2025] SASCA 2
•24 January 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MIOJLIC v CITY OF ONKAPARINGA COUNCIL
[2025] SASCA 2
Judgment of the Honourable President Livesey (ex tempore)
24 January 2025
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ANIMALS - LIABILITY OF OWNERS AND KEEPERS IN RESPECT OF INJURIES BY ANIMALS - STATUTORY PROVISIONS - SOUTH AUSTRALIA
The applicant seeks leave to appeal a decision made by single judge refusing him leave to appeal a decision made by the South Australian Civil and Administrative Tribunal, upholding a prohibition order made by the respondent.
The effect of the prohibition order is that the applicant’s two dogs will soon be destroyed following their violent attack on another dog, after which that dog died.
The applicant was given three opportunities to present grounds of appeal which comply with the rules of court and which identify material error in the decision of the judge.
Subsequently, the respondent filed an interlocutory application seeking summary dismissal of the applicant’s notice of appeal.
Held, summarily dismissing the appeal:
1.Where the matter has already been considered on appeal, the applicant must be astute to clearly identify real doubt about the decision under appeal, an issue of principle or general importance, or exactly where substantial injustice arises. Complaints about the outcome, disengaged from the identification of material error, will not usually assist an applicant seeking a second appeal hearing.
2.The proposed grounds of appeal do not identify any grounds which have any reasonable prospect of succeeding, nor would they warrant a grant of leave to appeal.
3.The applicant must pay the respondent’s costs fixed in the amount of $1,500, to be paid over the next 12 months.
Dog and Cat Management Act 1995 (SA) s 59A; Supreme Court Act 1935 (SA) s 50; Uniform Civil Rules 2020 (SA) rr 212.5, 212.1, referred to.
Atkins v Australian Broadcasting Corporation [2024] SASCA 96; Flowers v Hicks & Anor [2024] SASCA 126; Gassy v The King [2023] SASCA 90; KGS v GMS [2024] SASCA 85; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33; Miojlic v City of Onkaparinga Council [2024] SASC 152; Sambastian v Police [2024] SASCA 79, considered.
MIOJLIC v CITY OF ONKAPARINGA COUNCIL
[2025] SASCA 2
Court of Appeal: Civil – Livesey P
LIVESEY P.
Introduction
This matter has been listed today to allow Mr Miojlic (the applicant) to present an amended notice of appeal in response to an application for summary dismissal of his application for leave to appeal a decision made by a single judge.[1] The judge refused him leave to appeal a decision made by the South Australian Civil and Administrative Tribunal (the Tribunal), upholding a prohibition order made by the City of Onkaparinga Council (the respondent). The application for summary dismissal is made pursuant to r 212.5 of the Uniform Civil Rules 2020 (SA).
[1] Miojlic v City of Onkaparinga Council [2024] SASC 152 (B Doyle J).
This is the third hearing of the matter before me. There is some urgency because the effect of the prohibition order is that the applicant’s two dogs will soon be destroyed. They were involved in the violent attack of another dog near a school oval. That dog died.[2]
[2] The circumstances surrounding the attack, and the applicant’s failure to comply with earlier orders concerning his dogs are addressed in detail in Miojlic v City of Onkaparinga Council [2024] SASC 152 (B Doyle J).
The applicant is not legally represented. He has had difficulty articulating his case. I have previously explained the issues to the applicant in a broad way, and I have tried to assist, but not advise him, about what he must do if his application for leave to appeal is to proceed to a hearing.[3] Despite having been given an opportunity to present a third set of appeal grounds, the applicant has been unable to comply with the rules of court or identify reasonably arguable errors in the decision of the single judge. He has not articulated grounds of appeal which have any reasonable prospect of succeeding.
[3] Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33 (Livesey P); KGS v GMS [2024] SASCA 85 (Livesey ACJ).
For the following reasons, the applicant’s appeal should be dismissed.
Background to today’s hearing
On 10 January 2025, the applicant filed a notice of appeal in the Christies Beach Magistrates Court. On 13 January 2025 the Court received an email with a second notice of appeal. These notices of appeal, whilst distinct, both sought that the prohibition order be overturned.
By the application for leave to appeal dated 13 January 2025, the applicant seeks to overturn the decision of the respondent to make a prohibition order against him pursuant to s 59A of the Dog and Cat Management Act 1995 (SA). It prohibited the applicant from acquiring or becoming responsible for the control of any dog for a period of five years, and it required that his two dogs be surrendered to the respondent and destroyed.
The dogs have been with the respondent for some time. So as to give the applicant the chance to seek leave to appeal to this Court, the judge ordered that the destruction order be stayed until 5pm on 10 January 2025. The fees and charges associated with the care of the applicant’s dogs exceeds $120,000. The respondent has consented to extensions of the stay until 5pm today.
On 17 January 2025 the respondent filed an interlocutory application seeking summary dismissal of the applicant’s notice of appeal pursuant to r 212.5(2)(c)ii of the Uniform Civil Rules 2020 (SA). Relevantly, by amendments made in January 2025, r 212.5(2)(c) was amended to permit a single judge to order summary dismissal, including where none of the appeal grounds has a reasonable prospect of succeeding:
212.5—Interlocutory and ancillary orders in Court of Appeal matter
(1)Subject to any statute to the contrary and subrule (3), when the jurisdiction to hear and determine an appellate proceeding is vested in, or to be exercised by, the Court of Appeal, a single Judge may make interlocutory orders and other orders ancillary to the hearing and determination of the appellate proceeding.
(2)For example, a Judge may make orders relating to—
(a) the constitution of an appellate proceeding;
(b) the filing, service or amendment of an appellate document;
(c) striking out an appellate document or summarily dismissing an appellate proceeding if—
(i) the appellate proceeding is incompetent or has not been validly commenced;
(ii)none of the grounds has a reasonable prospect of succeeding; or
(iii)the appellant has not obeyed these Rules or any order made under them…
At the hearing on 17 January 2025, I struck out the notice of appeal dated 10 January 2025 and the applicant was granted leave to amend the second notice of appeal by 2pm on 23 January 2025. On that day the applicant asked for an extension to 5pm because he said he wanted documents from the respondent. The Court granted an extension until 4pm so as to allow the respondent some opportunity to consider the amended notice. No amended notice or explanation for its absence has been received from the applicant.
The applicant also seeks an extension of time in which to file his notice of appeal on the basis that his legal advisor was in hospital and the relevant paperwork was on his phone. There is no need to address the extension application.
The appeal grounds
Leave to appeal is required pursuant to s 50(4)(b) of the Supreme Court Act 1935 (SA) and r 213.1(1) of the Uniform Civil Rules 2020 (SA). When considering an application for leave to appeal, this Court acts in the interests of justice and by reference to the following inter-related questions:[4]
1.whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
2.whether the decision raises an issue of principle or general importance; and
3.whether allowing the decision to stand would work a substantial injustice to the applicant.
[4] See also Atkins v Australian Broadcasting Corporation [2024] SASCA 96, [24]-[25] (Livesey ACJ and Stein AJA); Flowers v Hicks & Anor [2024] SASCA 126, [26] (Livesey P and Bleby JA) Miojlic v City of Onkaparinga Council [2024] SASC 152, [60]-[63] (B Doyle J).
Of course, it is necessary to evaluate these questions recognising that this is the applicant’s second application for leave to appeal.[5] Because the matter has already received comprehensive consideration by a single judge that will usually make it more difficult for an applicant to demonstrate that the interests of justice require that there be a grant of leave to appeal. Where the matter has already been considered on appeal, the applicant must be astute to clearly identify real doubt about the decision under appeal, an issue of principle or general importance, or exactly where substantial injustice arises. Complaints about the outcome, disengaged from the identification of material error, will not usually assist an applicant seeking a second appeal hearing.
[5] See, for example, M, K v Chief Executiveof the Department for Child Protection [2021] SASCA 27, [5]-[7] (Doyle and Livesey JJA); Sambastian v Police [2024] SASCA 79, [4] (Livesey ACJ and Bleby JA).
The applicant’s notice and grounds do not address these matters. They do not identify material error in the reasons of the judge. The grounds of appeal are as follows:
1.1995 Part 2 Dog + Cat Management Division 3-51 No order was made nor handed to Damian on 31 October 2012.
2.Part 1 Division 3 23A Delegation – Mini Skip was never under an order Damian did not receive nor [sight] one.
The applicant’s notice of appeal does not comply with the rules of court and the proposed grounds of appeal are without merit. They are not supported by any evidence or other material which might support, even arguably, the assertions made. The applicant gave evidence to the Tribunal that no prior control order was made or served. The applicant reiterated that evidence today, adding that there was no violent attack because his dogs held the other dog still, in one position. He said that the person who claimed to be the owner of the other dog was not there. The applicant said that the hearing in the Tribunal involved corruption and he was “broken” by it.
Having considered the evidence, the Tribunal rejected the applicant’s account, finding that the relevant order was made and served on the applicant, and that his dogs were involved in the violent attack and death of another dog. On appeal, the judge found no reason to doubt these findings.
In the absence of an amended notice of appeal, the respondent filed helpful written submissions. I have considered those submissions.
Determination of the application for summary dismissal
None of the applicant’s appeal grounds has any reasonable prospect of succeeding. Whilst that finding demonstrates that an order for summary dismissal could be made, it does not mean that an order for summary dismissal necessarily should be made. To summarily dismiss an appeal is a large step, to be taken only where it is clearly in the interests of justice to make the order. The effect of the order is to deny a litigant the opportunity to proceed with an appeal or an application for leave to appeal, as the case may be. In most cases, like this case, some opportunity to amend the notice or grounds should usually be given.
Where an opportunity to amend has been given, and it remains clear that there are no grounds with any reasonable prospect of succeeding, an order for summary dismissal may be an appropriate response. Summary dismissal may represent an appropriate recognition of the clear lack of merit in the appeal, together with an appropriate balancing of the interests of all parties to the appellate proceeding. Indeed, it may be unjust to allow a matter to go to a hearing, even if it is only a hearing of the leave application, where it appears likely that no reasonably arguable grounds will emerge and the parties will unnecessarily be put to further time, trouble and cost.
In this case there seems little point in granting the applicant any further opportunity to amend. He has had an opportunity to obtain legal advice but he says he requires legal aid. He also says that this is not a matter where legal aid will be made available to him. It would seem that the applicant has otherwise been unable or unwilling to secure legal representation.
The prospect that the notice can be made to comply with the rules of court, or that material error will be identified in the reasons of the judge, seem remote indeed. In KGS v GMS it was explained:[6]
The Rules of Court apply to all litigants in the Court of Appeal, whether or not they are legally represented. Compliance with the Rules, at least in a substantial way, 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 attempts are made to determine whether a party has a case.[7]
Whilst it is necessary to provide unrepresented parties with assistance in an attempt to keep hearings free from error or misunderstanding, the Court cannot conduct the case for the unrepresented litigant. The Court cannot advise the unrepresented litigant. What is required to ensure a fair hearing will inevitably depend upon the facts and circumstances of any particular case, particularly the nature of the issue before the Court.[8]
It remains fundamental that any assistance given by this Court must not detract from the neutrality of the Court, nor from the fair disposition of the matter from the perspective of all parties before the Court.[9]
Clearly if, despite the applicant’s inability to identify error, it was possible to discern arguable error in the materials, then it may have been possible for this Court to raise the issue with the parties so that they could address the potential existence of an arguable error, together with the best means by which this might be articulated, in a manner fair to all parties.
[6] KGS v GMS [2024] SASCA 85, [24]-[27] (Livesey ACJ).
[7] Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33, [30]-[31] (Livesey P).
[8] Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33, [21]-[23] (Livesey P), citing Gassy v The King [2023] SASCA 90, [33]-[36] (Livesey P, David JA and Stein AJA).
[9] Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33, [24] (Livesey P), citing Gassy v The King [2023] SASCA 90, [37] (Livesey P, David JA and Stein AJA).
A close reading of the reasons of the judge does not suggest that there is much scope for an appeal. No obvious error is apparent. The judge gave the applicant a number of opportunities to present arguments and evidence, even after the applicant had on occasion failed to appear, and his Honour then comprehensively addressed all of the arguments raised.
Whilst the interests and welfare of the applicant and his dogs are clearly relevant, and I accept they are a matter of significant concern to the applicant and his family, they ultimately turn on whether the applicant can identify appeal grounds with a reasonable prospect of succeeding. That necessarily requires that the applicant identify appeal grounds which have some prospect of being granted leave to appeal. The applicant has not identified any grounds which could succeed, let alone warrant a grant of leave to appeal.
As well, large fees and charges are continuing to accrue and, assuming that these have been appropriately levied, there must be at least some doubt about whether they will all be recovered. The same might be said about the respondent’s party and party costs.
Conclusion
Despite having been given an opportunity to amend, the notice and grounds do not comply with the rules of court. The applicant has not advanced any ground of appeal which has a reasonable prospect of succeeding.
I am not prepared to grant any further time to amend or to continue the stay.
The notice and grounds of appeal, and the application for leave to appeal, are dismissed. All other orders are discharged. The applicant must pay the respondent’s costs fixed in the amount of $1,500, and he must pay that sum over the next 12 months.
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