Moore-McQuillan v Police No. Scgrg-98-748

[2000] SASC 229

MOORE-McQUILLAN v POLICE
[2000] SASC 229

Full Court:  Olsson, Wicks & Gray JJ

Application for Leave to Appeal

1. OLSSON J                 This application purports to be brought pursuant to the provisions of SCA 50(3) and SCR 94.03.

2. It seeks leave to impugn an order made by Debelle J as long ago as 27 November 1998.  At that time, for reasons published by him (Moore‑McQuillan v Police (Debelle J, 27 November 1998, S6971, unreported), Debelle J refused an application for extension of time in which to appeal.  He intimated that, even if he had been prepared to extend time, he would, in any event, have dismissed the appeal on the merits.

3. On 10 December 1998 Moore-McQuillan sought leave from Debelle J to appeal to the Full Court.  His written application in that regard seems to have been lost in the Registry for some time.  However, it came before Debelle J on 29 February 2000.

4. At that time Debelle J (inter alia) said:-

   “The issue in the appeal was whether certain legal costs which the applicant had undoubtedly incurred were in fact related to the initial grant of the restraining order and his successful appeal against that order.  In my reasons I found that they were not.  The issues in the appeal were essentially issues of fact.  There is no issue of principle as the issues relate only to questions of fact.  This is not, I think, a proper case in which to grant leave to appeal.”

5. The reasons published by Debelle J on 27 November 1998 are to be found amongst the sets of papers prepared for the consideration of the members of the Full Court.  It seems to me that these reveal that the description of Debelle J of their contents is apt.  The transcript of the argument advanced by Moore‑McQuillan on 29 February 2000 reveals that he was merely seeking to re-canvass matters of factual merit.

6. It has long been established that it is only proper to grant leave for a further appeal to the Full Court where the grounds of appeal disclose a point of law or a point of principle of general importance, or, in some exceptional cases, where there are clear indications that an injustice has occurred.  (See Martin v Kraft (No 2) (SAFC,  1 July 1991, S2964, unreported) - copy attached.)

7. In this case there is nothing to suggest that the matters which the applicant wishes to agitate remotely satisfy that test.

8. Moreover, SCR 94.02 requires any application to the Full Court to be filed within 14 days of refusal by the Judge sought to be appealed against.  It was out of time when filed and has not since been pursued with diligence.

9. I would refuse leave.

10. WICKS J          I agree that leave should be refused.

11. GRAY J             I agree.