Mitropoulos v Hancock Corporation Pty Ltd

[2007] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Leave to Appeal in Private)

MITROPOULOS v HANCOCK CORPORATION PTY LTD & ORS

[2007] SASC 43

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)

16 February 2007

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS

A Master of the District Court refused an order for costs that the applicant sought against a company which had sued her - the applicant appealed to a single Judge of the Supreme Court against the refusal to so order - the single Judge of the Supreme Court refused her application - whether the single Judge of the Supreme Court erred by refusing permission to appeal - the single Judge refused permission on the ground that it was an appeal from a judgment given on an appeal from an interlocutory judgment - the proposed appeal raises no issue of principle or general importance - appeal has no reasonable prospect of success - application refused.

Supreme Court Rules 2006 r 281(a)(ii), r 281(b), r 282(1), r 285(1)(a); District Court Act 1991 (SA) s 43(2)(b), referred to.
Mitropoulos v Hancock Corporation Pty Ltd [2006] SASC 379, discussed.

MITROPOULOS v HANCOCK CORPORATION PTY LTD & ORS
[2007] SASC 43

Full Court:        Doyle CJ, Gray and David JJ

1. THE COURT:       A judge of this Court refused to grant to Ms Mitropoulos permission to appeal against an interlocutory decision of a Judge of the District Court.

2. Ms Mitropoulos now wishes to appeal to the Full Court against the refusal of permission to appeal. Ms Mitropoulos has filed a Notice of Appeal and in that Notice of Appeal has sought permission to appeal to the Full Court, as permitted by r 285(1)(a) of the Supreme Court Rules 2006.

3. The matter began with a decision by a Master of the District Court refusing an application by Ms Mitropoulos for an order for security for costs.  The order was sought against a company that had sued Ms Mitropoulos in the District Court.

4. Ms Mitropoulos appealed against the refusal of the order for security for costs.  A District Court Judge dismissed the appeal.

5. An appeal against the decision of the District Court Judge lay to a single Judge of this Court, because the decision was an interlocutory judgment: see s 43(2)(b) of the District Court Act 1991 (SA).

6. The appeal to the single Judge of this Court required a grant of permission because it was an appeal from a judgment given on an appeal from an interlocutory judgment: r 281(a)(ii) of the Supreme Court Rules. It may be that permission was required also on the grounds that the appeal was limited to a question about costs: see r 281(b).

7. The single Judge of this Court refused permission to appeal.

8. An appeal to the Full Court against that decision requires a grant of permission because the decision of the single Judge is an interlocutory judgment: r 281(a)(1). Permission might also be required on the basis that the appeal is limited to a question about costs: r 281(b).

9. The application for permission has been made to the Full Court, as is contemplated by r 282(1).

10. The Court has considered the summary of argument filed on behalf of Ms Mitropoulos, the supporting affidavit, the reasons of the single Judge, the reasons of the District Court Judge and the reasons of the District Court Master.

11. The proposed appeal raises no issue of principle and no issue of general importance.  If permission to appeal were granted, the appeal would involve no more than an argument as to whether, in the circumstances, the Master erred in refusing to make an order for security for costs.

12. There is no reason to doubt the correctness of the decision of the Master or of the District Court Judge on appeal.  The submission that the reasons indicate an error of law has no prospect of success.  It is clear that both the Master and the District Court Judge considered the facts and the law, and were not satisfied that there was credible evidence to support the conclusion that there was reason to believe that the Corporation would be unable to pay the costs of Ms Mitropoulos if she succeeded.  The Court agrees generally with the reasons of the single Judge for so deciding.

13. The fact that the matter at issue is a question of costs is another reason for refusing permission to appeal.  The Court is slow to grant permission to appeal on such matters.

14. The Court agrees generally with the reasons given by the single Judge for refusing permission to appeal:  Mitropoulos v Hancock Corporation Pty Ltd [2006] SASC 379. Those reasons apply with equal force to the application now before the Full Court.

15. The order of the Court is that permission to appeal be refused.