Rana v Skycity Adelaide Pty Ltd

[2007] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Leave to Appeal in Private)

RANA v SKYCITY ADELAIDE PTY LTD

[2007] SASC 46

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)

16 February 2007

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS

Appeal against a refusal to order leave to appeal against a decision of a Magistrate – Magistrate ordered that appellant pay into court security for costs – a single Judge of the Supreme Court hearing the application for leave was satisfied that there were grounds on which the Magistrate could properly exercise his discretion to order security for costs – no error made out in respect of the reasons of the single Judge of the Supreme Court – permission to appeal refused.

Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Magistrates Court Act 1991 (SA) s 40(1); Magistrates Court Rules r 81; Supreme Court Rules r 281, referred to.

RANA v SKYCITY ADELAIDE PTY LTD
[2007] SASC 46

Full Court:  Doyle CJ, Gray and David JJ

1. THE COURT:       Mr Rana has brought proceedings in the Magistrates Court against Skycity Adelaide Pty Ltd.  He claims damages.  The action is a civil action.

2. A magistrate, exercising the power conferred by r 81 of the Magistrates Court Rules, ordered that Mr Rana provide security for costs in the sum of $12,000.

3. Mr Rana appealed to this Court against that decision. The right of appeal is created by s 40(1) of the Magistrates Court Act 1991 (SA).

4. A Judge of this Court heard the appeal.  The appeal was heard in open court.  Mr Rana presented his own case, and the respondent was represented.  The Judge took the view that the appeal required permission of the Court because the order appealed against was an interlocutory order.   The Judge refused permission to appeal.  The Judge said as well that even if permission was not required, he would have dismissed the appeal.

5. It is arguable that permission to appeal was not required.  The Magistrate’s order was an interlocutory order.  But r 281 of the Supreme Court Rules 2006 (SA) does not require permission to be obtained when the judgment subject to an appeal is an interlocutory judgment of a lower court.  It does require permission when the judgment subject to an appeal is an interlocutory judgment of this Court.  However, it may be that permission was required by r 281(b), which requires permission if:

   … the appeal is limited to a question about costs.

6. Be that as it may, Mr Rana has appealed to the Full Court against the decision of the single Judge.  Mr Rana seeks permission to appeal to the extent required. 

7. Permission is required for the purposes of an appeal to the Full Court. It is required by s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA), because this is an appeal against “a judgment given by a single judge on appeal from a judgment of the Magistrates Court”. It also is required by r 281(a)(ii) because this is an appeal against:

   A judgment given on appeal from an interlocutory judgment …

   The judgment of the single Judge is a judgment given on appeal from an interlocutory judgment in the Magistrates Court.  As well, permission may well be required by virtue of r 281(b), for the reasons just indicated.

8. The Court has considered an outline of submissions provided by Mr Rana, an Addendum Outline, and the reasons of the single Judge.  The Magistrate did not give any reasons for his decision.

9. The Full Court is slow to grant leave to appeal when the decision the subject of the appeal is an interlocutory decision.  It is also reluctant to grant permission to appeal on questions relating to costs.  As well, the case raises no issue of general principle and no issue of practical importance.

10. Most of the grounds taken by Mr Rana lack any substance.  Mr Rana raises the question of whether he required permission to appeal to the single Judge.  But as the Judge considered the case on its merits, even if he is right on that point he will not succeed.  Mr Rana makes a complaint of bias on the part of the Magistrate.  There is no substance in that.  The same comment applies to a claim that the Magistrate did not treat him fairly.  The reasons of the single Judge dispose of those grounds.  There is no substance in the complaint about the Magistrate’s use of affidavit evidence.

11. The only matter for concern is the failure of the Magistrate to give any reasons for his decision.  The amount of security required, $12,000, is substantial.  On the other hand, an affidavit before the single Judge indicates that Mr Rana admitted that he lacked the funds to meet an order for security for costs.  There was also material before the Magistrate indicating that Mr Rana was a frequent litigant who had lost a number of cases and against whom a number of costs orders were outstanding.  There is no indication of the view the Magistrate took of the prospects of success, although the single Judge was satisfied that the Magistrate must have directed his mind to that matter.

12. It would have been preferable if the Magistrate had given reasons for his decision.  The failure to give reasons makes the task of an appeal court more difficult.  It is likely to add to the dissatisfaction of the unsuccessful party.   The amount of security required was substantial, and the Magistrate’s order was likely, in the circumstances, to prevent Mr Rana from proceeding.

13. However, the failure to give reasons is not, of itself an error of law.

14. The single Judge, who heard full argument, was satisfied that there were grounds on which the Magistrate could properly have exercised his discretion to make the order that he made.  Nothing was identified that would persuade the single Judge to interfere with the exercise of the discretion.

15. In the circumstances, the Court is not persuaded that it should grant permission to appeal on this ground.

16. Accordingly, the order of the Court is that permission to appeal is refused.