Nella Goslino v Sunbeam Tile (Australia) Pty Ltd No. SCGRG 97/505 Judgment No. 6185 Number of Pages 2 Practice and Procedure Trial

[1997] SASC 6185

IN THE SUPREME COURT OF SOUTH AUSTRALIA

PERRY, J

Practice and procedure - trial - disqualification for bias - the appellant sought leave to appeal against the refusal by a Magistrate to disqualify himself from continuing with a part heard civil trial on the ground of apparent bias - application refused - observations as to the limited circumstances in which the Supreme Court will interrupt the completion of proceedings in inferior courts. Magistrates Court Act 1991s40(1); Supreme Court Rules R 96B.03, referred to.

ADELAIDE, 23 May 1997 (hearing), 23 May 1997 ((decision)

#DATE 23:5:1997

#ADD 2:6:1997

Appellant:

Counsel: Mr G Mancini

Solicitors: George Mancini And Co

Respondent Sunbeam Tile (Australia) Pty Ltd:

No Attendance

Order: application dismissed.

PERRY J

1. This is an application pursuant to rule 96B.O3 of the Supreme Court Rules for leave to appeal pursuant to s40(1) of the Magistrates Court Act against the refusal of a Magistrate constituting the Magistrates Court sitting at Holden Hill (Civil Jurisdiction) to disqualify himself on the ground of bias.

2. The plaintiff in the court below made the application unsuccessfully to the Magistrate himself. On his refusal to disqualify himself she now seeks leave to appeal against that refusal.

3. The plaintiff instituted proceedings against the defendant, Sunbeam Tile (Aust) Pty Ltd in June last year. The proceedings arise out of the installation of tiles to a floor at her premises at Regency Road, Broadview. She advances a claim for $6,000 under the head of the cost of taking out the existing tile floor and replacing it, and further amounts of $10,000 damages for stress and $5,000 for inconvenience, a total of $21,000.

4. The defendant denies the relevant allegations as to the quality of the work and goes on in its defence to assert that the dispute was resolved before the proceedings were instituted by way of an agreement between the parties.

5. At the commencement of the hearing the plaintiff was unrepresented. Subsequently Mr Mancini of counsel was briefed on her behalf. At the stage of the case at which it appears that the plaintiff had been called on to close her case he submitted that it should not proceed and that the Magistrate should there and then disqualify himself on the ground of apparent bias. This the Magistrate refused to do. On a resumed hearing sometime later, namely on 24 March, the Magistrate heard evidence from an expert witness called by the defendant.

6. Mr Mancini again appeared for the plaintiff and cross-examined that witness at length. After that witness had completed his evidence, leave was granted for the plaintiff to reopen her case and to call any other evidence if she was so advised. The trial was then adjourned over from 24 March to Friday 30 May 1997 at 10 am. for the trial to resume.

7. The application before this court was lodged on 7 April. It is supported by an affidavit of Mr Mancini annexing a proposed draft notice of appeal against the refusal of the learned trial Magistrate to disqualify himself, which is in turn accompanied by a schedule itemising a number of complaints as to the manner in which the learned Magistrate conducted the hearing.

8. I have today heard Mr Mancini ex parte to expand on those matters. The whole of the file in the Magistrates Court has been transmitted to this court and I have had the benefit of perusing the transcript to the extent necessary to deal with the present application.

9. In my opinion, the application should be refused. The grant of leave to appeal against interlocutory rulings, or rulings made before the final determination of summary trials, is a process reserved for the most exceptional of cases. The rule which this court has applied in dealing with such applications, which has been repeated again and again, is that the trial process of inferior courts is not to be interfered with lightly. Ordinarily, once a trial has commenced, it should be allowed to proceed to completion, reserving for any subsequent appeal after final judgment has been given, any alleged irregularities in the hearing.

10. This trial is well down the track. The plaintiff has been given leave to call further evidence, if she wishes. She is now represented. A critical witness for the defence has been cross-examined at length by her counsel.

11. Although the learned Magistrate may have expressed himself in robust terms as to some aspects of her claim, there is no reason to suppose on the material which is before me that the hearing will not be completed and any judgment given fairly and in accordance with law.

12. Whatever rights the plaintiff might have which have been generated by any aspect of the learned Magistrate's conduct of the trial to date, can adequately and fully be exercised by the ordinary right of appeal after final judgment.

13. The application is dismissed.