Rana v Police

[2008] SASC 347

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

RANA v POLICE

[2008] SASC 347

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Kelly)

12 December 2008

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

Application for permission to appeal to the Full Court of the Supreme Court against a decision of a single Judge – single Judge dismissed appeal against decision of a Magistrate confirming a restraining order against Applicant.

Held: Material indicates that Applicant wishes to reargue the points argued before the Single Judge – proposed appeal raises no issue of legal principle – proposed appeal has little chance of success – permission to appeal refused.

Summary Procedure Act 1921 (SA) s 99C(6); Supreme Court Act 1935 (SA) s 50(4); Supreme Court Civil Rules 2006 r 282, referred to.

RANA v POLICE
[2008] SASC 347

Full Court:      Doyle CJ, Bleby and Kelly JJ

1. THE COURT:      This is an application for permission to appeal against a decision of a single Judge of this Court.

2. The Judge dismissed an appeal by Mr Rana against a decision by a Magistrate confirming a restraining order made against Mr Rana. The Magistrate confirmed the restraining order in exercise of the power conferred by s 99C(6) of the Summary Procedure Act 1921 (SA).

3. An appeal lies to the Full Court against the judgment of the single Judge only if the Court grants permission to appeal: s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA). Mr Rana applied to the single Judge for permission to appeal. The single Judge did not grant permission to appeal, and as required by r 282 of the Supreme Court Civil Rules 2006, referred the application for permission for determination by the Full Court.

4. The application for permission has been considered by the Full Court comprised of Doyle CJ, Bleby and Kelly JJ.

5. The Court has considered the reasons of the single Judge, a detailed outline of submissions filed by Mr Rana, a detailed summary of argument filed by Mr Rana and Mr Rana’s Notice of Appeal.

6. The restraining order against Mr Rana was confirmed at a hearing at which Mr Rana did not attend.  However, the material before the Magistrate, and before the single Judge, supported a finding that Mr Rana was properly summoned to appear, and was properly given notice of the hearing, and failed to attend the hearing.  Accordingly, it was open to the Magistrate to confirm the restraining order in Mr Rana’s absence.

7. The single Judge found that the material before the Magistrate, and on which the Magistrate relied, was admissible.  The single Judge was also satisfied that Mr Rana was given proper notice of the allegations against him, and of the material relied upon to support the confirmation order.

8. The single Judge was also satisfied that the material before the Magistrate provided a sufficient basis for the making of the confirmation order.

9. Mr Rana’s Notice of Appeal, and his written submissions, indicate that if permission to appeal is granted, Mr Rana wishes to reargue the points that were argued before the single Judge.  Mr Rana challenges the admissibility of the material upon which the Magistrate relied, the adequacy of the material provided to Mr Rana, and the sufficiency of that material as a basis for the making of the confirmation order.

10. The proposed appeal raises no issue of legal principle.  If permission is granted the appeal would involve a re-argument of matters already argued before the single Judge and decided by him.  The written material submitted by Mr Rana does not give rise to any reason to doubt the correctness of the decision of the single Judge in dismissing Mr Rana’s appeal.

11. The Court will not ordinarily grant permission to appeal to the Full Court unless the case raises some issue of legal principle, and unless the appeal has an arguable prospect of success.  Neither of these conditions are satisfied in the present case.  Nor is there anything arising from Mr Rana’s material that would lead to the conclusion that the interests of justice call for a grant of permission to appeal.

12. Accordingly, the Court orders that permission to appeal be refused.