Rana v Gregurev - [2011] SASCFC 157

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
RANA v GREGUREV; RANA v GREGUREV
[2011] SASCFC 157
Reasons for Decision of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Blue)
19 December 2011
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for permission to appeal to the Full Court in private - the applicant issued two complaints against the respondents seeking restraining orders - a Magistrate dismissed them on the basis that they were an abuse of process and vexatious - the applicant appealed to a single Judge of the Supreme Court of South Australia, who dismissed each appeal - the applicant applied to the Full Court of the Supreme Court of South Australia for permission to appeal and an extension of time within which to appeal - the reason for the delay in filing the Notices of Appeal was that the applicant was suffering from paranoid schizophrenia and diabetes - the first ground of appeal was that the Judge erred in holding that the Magistrate had power to dismiss each complaint - the second ground of appeal was that the Judge denied the applicant procedural fairness – the issue was whether the grounds of appeal were reasonably arguable and whether it was in the interests of justice to permit a second appeal against the exercise of summary jurisdiction.
Held: In each matter the Court extended to 4 October 2011 the time for applying for permission to appeal but refused permission to appeal.
Summary Procedure Act 1921 (SA) s 57(2)(c), s 99CA(1), s 99CA(1)(b), s 99CA(2), s 99CA(2)(a), s 99CA(2)(b), s 99CA(2)(c), s 99CA(2)(d), ss 99CA(2)(e) and s 99CA(2)(f); Supreme Court Civil Rules 2006 (SA) r 281(1) and r 289(1)(a), referred to.

RANA v GREGUREV; RANA v GREGUREV
[2011] SASCFC 157
Full Court: Doyle CJ, Vanstone and Blue JJ

THE COURT: Mr Rana has applied for permission to appeal to the Full Court against a decision by a Judge of this Court. The Judge dismissed appeals by Mr Rana against decisions by a Magistrate in each of two related matters.
Mr Rana had issued 2 complaints against the respondents to the appeal seeking restraining orders. The Magistrate dismissed the complaints on the basis that they amounted to a misuse of the Magistrates Court process and were vexatious pursuant to s 99CA(2)(b) and (d) of the Summary Procedure Act 1921 (SA) (the “Act”).
The Judge made his decision dismissing the appeals on 23 June 2011. The decision was given ex tempore. The Judge provided brief but comprehensive reasons for the decision. Mr Rana now accepts that permission to appeal from the judgment of 23 June 2011 was required. Rule 289(1)(a) of the Supreme Court Civil Rules 2006 (SA) permits an appellant to seek permission to appeal by commencing the appeal in the ordinary way and including in the Notice of Appeal a request for the necessary permission, in which event the Notice of Appeal is required by r 281(1) to be filed within 21 days after the date of the judgment.
On 7 July 2011, Mr Rana lodged Notices of Appeal purportedly as of right, without including an Application for Permission to Appeal. The Registrar referred to a Judge of this Court the question whether the documents should be accepted, and on 12 August 2011 a Judge directed the Registrar to reject the documents as constituting an abuse of process.
On 4 October 2011, Mr Rana filed fresh Notices of Appeal in which he sought permission to appeal and an extension of time within which to appeal.
Mr Rana says in the second Notices of Appeal that the reason for the delay in filing the Notices of Appeal was that Mr Rana was suffering from paranoid schizophrenia and diabetes, which made him unable to prepare the appeal papers. The Affidavit filed by Mr Rana supports his claim to have been suffering from mental illness. In the circumstances, the Court extends to 4 October 2011 the time for applying for permission to appeal.
The Court will not grant permission to appeal against a decision by a Judge of this Court, on appeal from the Magistrates Court, when that Court is exercising summary jurisdiction, unless the Court is satisfied that the grounds of appeal are reasonably arguable, and that it is in the interests of justice to permit a second appeal against the exercise of summary jurisdiction.
In considering these issues, the Court has considered the summaries of argument filed by Mr Rana, and has also considered the reasons of the Judge.
The first ground of appeal advanced by Mr Rana is that the Judge erred in holding that the Magistrate had power to dismiss each complaint under s 99CA(2)(b) and (d) of the Act. In turn, Mr Rana advances 2 contentions in support of this ground. The first contention is that the Magistrates Court is not empowered to dismiss a complaint pursuant to sub-paragraphs (b) to (f) of s 99CA(2) without first hearing oral evidence pursuant to sub-paragraph (a). The Magistrate dismissed the complaints without proceeding to hear oral evidence from Mr Rana, and Mr Rana contends that he had no power to do so.
This contention was not advanced before the Judge, and he did not deal with it in his reasons. The failure of Mr Rana to articulate this point before the Judge is a factor weighing against the grant of permission to appeal.
In any event, there is no merit in this contention. It misconstrues s 99 CA(2) of the Act. Sub-paragraph (a) of that sub-section operates in a negative fashion: it prohibits the Magistrates Court proceeding to the next stage of issuing a summons after receiving a complaint, and requires the Court to dismiss the complaint unless it is supported by oral evidence. It does not require the Court to hear oral evidence before exercising its power to summarily dismiss the complaint pursuant to sub-paragraph (b). Such a construction would be contrary to the obvious purpose and literal effect of sub-paragraph (b) in giving the Court a power to summarily dismiss and is not reasonably arguable.
Mr Rana’s second contention is that the defendants (the respondents to the appeal), appeared at the hearing before the Magistrate on 7 April 2011 (and indeed at the previous hearing on March 2011), that this obviated the need for the issue of a summons, and therefore it was then too late for the Court to exercise a power of summary dismissal pursuant to sub-paragraph (b) of s 99CA (1). Again, this contention was not argued before or dealt with by the Judge.
This contention also has no merit. Sub-paragraph (b) of s 99CA(1) gives to the Court a discretion to refuse to issue a summons for the appearance of the defendant and to dismiss the complaint. We assume, in favour of Mr Rana, that each defendant was “already before the Court” within the meaning of s 57(2)(c) of the Act and that accordingly no summons was required to be issued. On that assumption, the mere fact that the defendant was already before the Court and that a refusal by the Court to issue a summons for the appearance of the defendant pursuant to s 99CA(2)(b) would have been otiose, ineffective or unavailable does not deprive the Magistrates Court of power to dismiss the complaint pursuant to that sub-paragraph. There is no reason why sub-section 99CA(2) should be construed so as to deprive the Court of a discretion to summarily dismiss a complaint at any stage of the proceedings prior to the final hearing (and specifically after a summons has been served or obviated) and such a construction is not reasonably available.
The second ground of appeal is that the Judge denied Mr Rana natural justice. In so far as this ground refers to the contentions made in respect of ground 1, it follows from what we have said above that it is not reasonably arguable. Otherwise, the summaries of argument do not disclose a reasonably arguable case that the Judge denied Mr Rana procedural fairness.
In summary, Mr Rana has not put forward a reasonably arguable ground for concluding that the Judge erred in his decision. Nor, in all the circumstances, is it in the interests of justice that permission to appeal should be granted. There is nothing in the matter to suggest that it raises any issues of principle or that raises considerations that, in the interests of justice, call for a review of the Judge’s decision.
For those reasons in each matter the Court extends to 4 October 2011 the time for applying for permission to appeal but refuses permission to appeal.