Rana v Skycity Adelaide Pty Ltd - [2007] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
RANA v SKYCITY ADELAIDE PTY LTD
[2007] SASC 14
Judgment of The Honourable Justice Anderson
23 January 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION
PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL - CLASSIFICATION - FINAL AND INTERLOCUTORY
Appeal against the decision of a magistrate – magistrate ordered that appellant pay into court security for costs prior to matter going to trial – whether magistrate erred – whether magistrate prejudged matter – whether magistrate fettered discretion in ordering security for costs – Held: order of magistrate was interlocutory, therefore leave required for appeal to Supreme Court – leave not granted – grounds of appeal considered - no merit in grounds in any event
Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) 5, referred to.
Re Luck (2003) 203 ALR 1; Bienstein v Bienstein (2003) 195 ALR 225; Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246; Duke Group Ltd (in liq) v Arthur Young (No 2) (1991) 4 ACSR 355, applied.

RANA v SKYCITY ADELAIDE PTY LTD
[2007] SASC 14
Magistrates Appeal
ANDERSON J
Introduction

In this matter the appellant is appealing from a decision of a Magistrate who ordered the appellant, as a precondition of the appellant’s claim proceeding to trial, to pay into Court the sum of $12,000 as security for costs.
In Re Luck (2003) 203 ALR 1 the High Court dealt with the test for whether an order is interlocutory or final, and applied the earlier decisions of that court in Bienstein v Bienstein (2003) 195 ALR 225 and in Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246. In Re Luck the Court said at 2:
… the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. (citations omitted)
On the face of it, that makes this order an interlocutory order because it does not finally determine the rights of the parties in the principal cause pending. Therefore the appellant requires leave. In considering any question of leave, I have regard to the test outlined by Olsson J in Duke Group Ltd (in liq) v Arthur Young (No 2) (1991) 4 ACSR 355 where his Honour said in deciding such a question the Court:
…must be satisfied that the decision sought to be impugned is either wrong or attended with sufficient doubt to warrant its reconsideration on appeal, or has the effect of working a substantial injustice on the proposed appellant.
Therefore, for practical purposes, I will consider the merits in any event.
Background
The action which the appellant commenced in the Adelaide Magistrates Court is a claim alleging a breach of s 52 of the Trade Practices Act 1974 (Cth). The appellant alleges that he was induced into the respondent's casino by a voucher given to him as a birthday gift by the Casino. After attending at the Casino, the appellant was asked to leave because of his behaviour and when he disputed this, an altercation began. He was then forcibly removed by the Casino’s security staff. He seeks damages both for misleading and deceptive conduct, and for a breach of an alleged contract, which he says was entered into between the parties by virtue of the Casino sending him the voucher and his acceptance of the voucher.
The notice of appeal
In his notice of appeal, the appellant appeals against the whole of the order made by the Magistrate, namely, the payment into Court of $12,000. The appellant alleges that the Magistrate erred by accepting the affidavit of one legal practitioner, and by relying on what he calls “fabricated affidavits of another practitioner”.
The appellant also alleges bias against the Magistrate on the basis that he has prejudged the matter, and because the Magistrate had previously dealt with the appellant in another similar matter - Rana v Hyatt Regency Hotel Ltd [2007] SASC 7.
The appellant also complains about the exercise of the Magistrate’s discretion in ordering the payment for security for costs. He complains that he was not able to sufficiently explain his financial position, and he was not given sufficient time to prepare his argument before the Magistrate. I will set out the full grounds of appeal later.
The appellant in this appeal seeks orders, (using his words) as follows:
1.The matter be remitted back to be heard by the Federal Magistrates Court under cross-vesting legislation, as the plaintiff has disability discrimination against the same party in the same fact to be joined in the interests of justice.
2. Costs of the appeal.
It is a simple fact that the appellant cannot achieve the order he seeks from this Court, namely, transferring the matter to the Federal Magistrates Court. Proceedings can be transferred between State and Federal jurisdictions by virtue of the jurisdiction conferred by the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA). However, s 5 does not authorise this Court to transfer a matter from the Adelaide Magistrates Court into the Federal Magistrates Court.
The respondent argues that because the appellant has sought an order in his notice of appeal which is not available, the notice of appeal is defective, and therefore the appeal should be dismissed. I do not accept that argument. The appeal can be dealt by considering the grounds of appeal, but if the grounds succeed the order sought transferring the matter to the Federal Magistrates Court cannot be achieved.
The decision appealed from
I bear in mind that I am dealing with the exercise of a discretionary judgment by the Magistrate, and that the Magistrate, in making the order, had certain information before him supporting the respondent’s contention that the order for security for costs should be made.
Such information included details about the plaintiff’s impecuniosity. It also included his involvement in a broad range of litigation in different jurisdictions. In those matters, costs orders had been made against him, and there was no evidence that those costs orders had been complied with.
No doubt the Magistrate also took into account the prospects of success in the action. An affidavit by Mr Martin, who appeared at the hearing before the Magistrate, was admitted by me on the hearing of the appeal. Mr Martin deposed to the fact that at the outset of the hearing before the Magistrate, the appellant wanted the matter adjourned so that he could join the action with the disabilities discrimination claim he had in the Federal Magistrates Court. The Magistrate refused this application. The Magistrate then proceeded to hear the respondent’s application for security.
Mr Martin deposes to the fact that the appellant said he did not have the money, and that the amount claimed by the respondent, namely $19,000, was “a vexatious amount”.
The appellant tendered no evidence before the Magistrate. The Magistrate found that $12,000 was the appropriate figure for security for costs and asked the appellant if there was anything more he wished to add. The appellant repeated that he didn’t have the money to pay the security.
The appellant then alleged bias against the Magistrate but did not make any further submissions, and the order for security for costs was then made by the Magistrate.
Mr Martin points out in his affidavit that the appellant neither tendered any evidence nor sought an adjournment to enable him to adduce evidence or prepare argument. The appellant made no complaint of being taken by surprise. This is relevant because the appellant is a person who knows his way around various courts by virtue of the numerous actions he is now involved in and in which he has been involved in the past. These other actions are summarised in another affidavit which was put before me in the appeal. This argument basically relates to the fifth ground of appeal, and is certainly not made out by the appellant as against the evidence contained in the affidavit of Mr Martin, to which the appellant indicated he had no objection.
I will now deal with the individual grounds of appeal as they appear in the notice of appeal.
THE GROUNDS OF APPEAL
GROUND 1
The learned Magistrate erred in law by accepting the affidavit of Thomas Martin, a Solicitor of the defendant. He relied on fabricated affidavits of G Grennan of Thomson Playford for Hyatt Hotel and Western Union International Pvt Ltd. Mr Martin did not draw the source of his knowledge contrary to section 75 of the Evidence Act 1995 (Cth). See Rana v University of South Australia (2004) FCA 559.
In relation to the first ground of appeal, the affidavit of Mr Martin relies on an affidavit which was filed by another practitioner in another matter in the Federal Court, and therefore is the basis of the belief of the deponent. It is reasonable for one solicitor to be able to rely on information provided in an affidavit filed by another solicitor in other proceedings. I reject this ground of appeal.
GROUND 2
The learned Magistrate was not fair to the plaintiff as he had already made up his mind, became an advocate for the other party, was not open to persuasion and then went on to order A$12000 surety without allowing the plaintiff to put substantive and detailed affidavit and outline of submission.
From the affidavit of Mr Martin, it is apparent that the Magistrate did offer the appellant the opportunity of presenting further submissions or calling other evidence. As I have indicated, the appellant is an experienced litigant, and certainly knows his rights. He chose not to put up any further information or argument, and I dismiss this ground of appeal.
GROUND 3
The learned Magistrate has shown apparent bias as he struck out another matter in the same unfair way and sat on to hear this matter while an appeal is before the Supreme Court (now).
There is no evidence to show any bias on behalf of the Magistrate. The fact is that in the other matter referred to by the appellant, the same Magistrate afforded him the opportunity of redrafting his pleadings because he was faced with the possibility that his claim would be dismissed. The Magistrate actually offered to assist, to the extent that he could, but the appellant declined that offer in that case. The Magistrate dismissed the claim at the plaintiff’s invitation after he declined to redraw his pleadings. He was awarded costs against him of $16,000 in that matter. Far from showing bias because of a previous decision, the Magistrate has demonstrated, both in that decision and in the opportunity he gave to the appellant on this occasion, a desire to afford the appellant every opportunity of presenting his case. I say this despite the result on appeal of Rana v Hyatt Regency Hotel Ltd, which allows the matter to be further heard in the Magistrate's Court. I dismiss this ground of appeal.
GROUND 4
The learned Magistrate fettered his discretion in ordering for security as His Honour did not relevantly applied the relevant test as of the list goes on per Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972. Those matters being the plaintiff's chances of success, whether the order would shut out the applicant from pursuing its claims whether the applicant's impecuniosities arose out of the breaches alleged against the respondent, the public interest, discretionary matters peculiar to the present case and the risk that the plaintiff would not be able to satisfy an order for costs.
In the exercise of his discretion, as I have indicated, although no reasons have been published, it is quite apparent from the information before the Magistrate that he would have had regard to the various matters which I have already mentioned. It is my view therefore that it was an appropriate case in which to make the order for security for costs, and nothing has been demonstrated before me which causes me to interfere with the discretionary exercise.
GROUND 5
The learned Magistrate did not allow the plaintiff to explain his financial position apart from showing intimidating body behaviour the order was made within 10 seconds. It was only a direction hearings, and the plaintiff had not had chance to file affidavits to reply the defendant and prepare for outline of submissions to him.
I have already dealt with the ground in my earlier discussion of the way in which the matter proceeded before the Magistrate. There is nothing in my reading of the transcript to justify the complaints made by the appellant. I would also dismiss this ground.
Conclusion
If I am wrong and this is an appeal as of right, I would dismiss it for the reasons given. If it is in fact an appeal which requires leave, I would not grant leave for the reasons given. There is no reasonable prospect that the decision is either wrong or attended with sufficient doubt to warrant reconsideration, or that it imposes a substantial injustice on the appellant. The order of the Court then is that leave to appeal is refused.