PUNTURERI v IAROSSA

[2006] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Leave to Appeal in Private)

PUNTURERI v IAROSSA

Judgment of The Full Court

(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Layton)

28 April 2006

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL

Application to Full Court for leave to appeal against decision of single Judge of Supreme Court to refuse leave - Unjustified delay in progressing appeal - No identifiable grounds of appeal - Proposed grounds of appeal same as application for leave to appeal before single Judge - No error demonstrated - Application dismissed.

Supreme Court Civil Rules 1987 (SA) r 94.03, r 95.11(3), referred to.

PUNTURERI v IAROSSA
[2006] SASC 125

Application for leave to appeal

Full Court: Duggan, Bleby and Layton JJ

1. THE COURT:      There was an appeal by the present applicant against a judgment of the Magistrates Court dismissing a claim by the applicant for damages for personal injuries said to have arisen out of a motor vehicle accident which occurred on 18 September 1998.   The appeal was dismissed by the Chief Justice on 11 April 2005.  The applicant applied to the Chief Justice for leave to appeal to the Full Court against his decision.  The Chief Justice dismissed the application on 4 May 2005.

2. The present application is an application to the Full Court for leave to appeal against the judgment of the Chief Justice.  It was filed with a supporting affidavit on 18 May 2005.

3. The reason for the extraordinary delay in setting the application down before the Full Court, as explained in an affidavit of the applicant’s solicitor, is quite unsatisfactory.  It is said that, at the time of filing the application, “the reasons for decision of 4 May 2005, the materials were not within my possession” (sic).  However, the settled copy of the Chief Justice’s reasons for dismissing the appeal had been filed on 4 May 2005, the day on which leave to appeal was refused by the Chief Justice.  It is difficult to know what else could have been required by the plaintiff’s solicitor.  Everything that the applicant’s solicitor needed to process the present application was either in the possession of the applicant or available on the Court file.  Nevertheless, he deposes to having received “the materials” in June 2005. 

4. The solicitor says that he was unable, on 16 February 2006, to file the summary of argument required by r 94.03 because the judgment on appeal and the order refusing leave to appeal had not been sealed.  If the applicant wanted to pursue the application for leave, he was required to ensure that those documents were sealed.  No explanation is given for the delay between May 2005 and February 2006.

5. As the application is made ex parte pursuant to r 94.03, no-one has been in a position to apply to strike the application out for want of prosecution.  For an application such as this there is no provision in the Supreme Court Rules equivalent to r 95.11(3) providing for automatic dismissal of an application for leave to appeal where nothing is done to advance it.  That may be a defect in the rules which requires attention.  However, substantial delay like that in the present case is a matter which must be taken into account by the Full Court in deciding whether or not leave to appeal should be granted.  A successful defendant in the Magistrates Court is entitled to believe, almost 12 months after an appeal against that decision has been dismissed, without any notice that steps have been taken for a further appeal, that the matter has come to an end.  Had the application been on notice, he would have been able to apply to have the application struck out for want of prosecution.

6. Apart from any question of delay, the application in its present form is misconceived.  The affidavit in support of the application merely asserts that (para.7):

   The proposed grounds of appeal would canvass the following areas:

   7.1that the failure to call Mrs Caruso of itself did not militate against a finding that the plaintiff had proven his case beyond the balance of probabilities;

   7.2that the finding that the plaintiff lied so coloured the Trial Magistrate’s view of the applicant that the judgment against the plaintiff should not stand.

7. The summary of argument required to be filed under r 94.03 merely repeats and attempts to re-argue the 13 grounds of appeal against the Magistrate’s decision.  At no point in the affidavit or in the outline are there any grounds of appeal relating to the reasons for decision of the Chief Justice.  This is not an application to re-hear the appeal from the Magistrates Court.  The intended grounds of appeal to the Full Court must relate to and identify some error on the part of the Chief Justice.  Neither the foreshadowed grounds nor the outline of argument does so.  That is another compelling reason for dismissing the application.

8. We turn to the grounds identified in the affidavit even though they do not attack the judgment of the Chief Justice.  The two intended grounds referred to above were raised in identical terms by the applicant in the application for leave to appeal before the Chief Justice.  As the Chief Justice observed in refusing leave, they are merely factual aspects of the dispute that was before the Magistrate.  Furthermore, the applicant raised one point that was not on appeal before the Chief Justice, namely that the Magistrate may have been led into error by his finding that the plaintiff lied.  In his reasons for dismissing the appeal the Chief Justice had said that even if that finding was not made, there were other facts which provided a solid basis for the Magistrate’s decision to reject the applicant’s claim.  That observation is not challenged.  As the Chief Justice also observed, there was adequate material to support the conclusion that the impact between the two vehicles on which the applicant relied either did not occur or was so trivial that it could not have caused any injury.

9. Leave to appeal to the Full Court will only be granted where there is a question of general principle which arises and there is doubt about the correctness of the decision of the single Judge.  No question of principle arises in this case.  No question of injustice arises.  The only matter that could be agitated on an appeal is argument as to the findings of fact made by the Magistrate, all of which were open to him on the evidence.

10. For these reasons, by reason of the unjustified delay in progressing the application and the fact that no attempt has been made to identify any error in the reasons of the Chief Justice, leave to appeal is refused.