ZLATAN MARTINCIC In Person v ETHNIC BROADCASTERS INC [2024] SASCA 33

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE KIMBER) CIV-23-011186 First Applicant: DMITRY MARTINCIC BY HIS LITIGATION GUARDIANS ZLATAN MARTINCIC AND OLGA SHMAKOVA In Person Second Applicant: ZLATAN MARTINCIC In Person Respondent: ETHNIC BROADCASTERS INC Counsel: MR E BELPERIO - Solicitor: BELPERIO CONNELL Hearing Date/s: 22/03/2024 File No/s: CIV-24-001943 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MARTINCIC & ANOR v ETHNIC BROADCASTERS INC [2024] SASCA 33 Judgment of the Honourable President Livesey 22 March 2024 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - NOTICE OF APPEAL The applicants seek leave to appeal from the Court of Appeal. A Supreme Court Judge dismissed their appeal from a Magistrate on the basis that it was not competent. The proceedings concern a claim under the Associations Incorporation Act 1985 (SA) which is defined as a “minor civil action” for which there is no right of appeal to the Supreme Court pursuant to s 38 of the Magistrates Court Act 1991 (SA). The applicants filed a notice of appeal. The notice of appeal was seriously defective and did not conform with the rules of court, particularly r 214.2 of the Uniform Civil Rules 2020 (SA). The applicants were advised by the Court to consider the relevant rules and to address four questions in an amended notice of appeal: (1) What order is challenged? (2) What error was made? (3) Why should leave to appeal be granted? (4) What orders are sought on appeal? The amended notice of appeal instead added more than 20 new paragraphs and identified 22 errors made by judicial officers in the Magistrates Court, the District Court and the Supreme Court over the last 12 months. HELD (the Court) striking out the applicants’ amended notice of appeal, with costs: -- 1 of 8 -- 1. The amended notice of appeal is discursive and difficult to follow. It does not comply with the rules in fundamental respects. It does not serve its essential purpose because it does not identify the matters required for the proper determination of an application for leave to appeal to the Court of Appeal. In consequence, there will be inevitable confusion and delay associated with the hearing and determination of this matter. 2. The court must ensure that an unrepresented litigant is apprised of relevant rights and duties and be vigilant to keep the proceedings free from error or misunderstanding. Whilst some assistance may need to be given, the court cannot conduct the case for the unrepresented litigant. It is fundamental that any assistance given by the court must not detract from the neutrality of the court. 3. The Uniform Civil Rules 2020 (SA) apply to all litigants in the Court of Appeal, whether or not they are legally represented. Compliance with the rules is necessary so as to provide procedural fairness to the opposing litigant and to avoid the limited resources of this Court being wasted on time-consuming hearings during which whether the party in default has a case is explored and attempts are made to articulate it. 4. It is not appropriate to adjourn the matter and order that a further amended notice of appeal be filed. The notice of appeal must be struck out. The applicants must pay the respondent’s costs, fixed in the amount of $1,500, payable within 60 days. Associations Incorporation Act 1985 (SA) s 61; Magistrates Court Act 1991 (SA) ss 3 and 38; Uniform Civil Rules 2020 (SA) rr 1.5, 212.5 and 214.2, referred to. Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Cachia v Hanes (1994) 179 CLR 403; Cooling v Steel (1971) 2 SASR 249; Crampton v The Queen (2000) 206 CLR 161; Dietrich v The Queen (1992) 177 CLR 292; Gassy v The King [2023] SASCA 90; Gould v Police [2005] SASC 297; Harris Scarfe Ltd (In liq) v Ernst & Young (No 2) [2005] SASC 168; Hittmann v Police (1999) 202 LSJS 132; Hopfner v Flavel (1990) 48 A Crim R 149; Jamal v Director of Public Prosecutions (DPP) [2013] NSWCA 355; Kelly v Westpac Banking Corporation [2014] NSWCA 348; MacPherson v The Queen (1981) 147 CLR 512; Malouf v Malouf [2006] NSWCA 83; Martincic v Ethnic Broadcasters Incorporated [2024] SASC 15; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; Pezos v Police (2005) 94 SASR 154; R v Gidley [1984] 3 NSWLR 168; R v White (2003) 7 VR 442; R v Zorad (1990) 19 NSWLR 91; Reisner v Bratt [2004] NSWCA 22, considered. -- 2 of 8 -- MARTINCIC & ANOR v ETHNIC BROADCASTERS INC [2024] SASCA 33 Court of Appeal – Civil LIVESEY P (ex tempore): Introduction 1 Dmitry Martincic (by his litigation guardians Zlatan Martincic and Olga Shmakova) is the first applicant and Zlatan Martincic is the second applicant. 2 Ethnic Broadcasters Incorporated is the respondent. 3 The applicants seek leave to appeal against the decision of Kimber J dismissing their appeal on 5 February 2024. 4 The applicants’ appeal was dismissed on the basis that it was not competent because the proceedings concern a “minor civil action” for which there is no right of appeal to the Supreme Court pursuant to s 38 of the Magistrates Court Act 1991 (SA). 5 For the following reasons, the applicants’ amended notice of appeal must be struck out. The applicants’ case 6 For the purposes of today’s decision, it is not necessary to do other than briefly describe the history of these proceedings. 7 The applicants are not legally represented. In February 2023, they commenced a claim in the District Court of South Australia, pursuant to the Associations Incorporation Act 1985 (SA), alleging that the respondent “association has engaged in oppressive or inappropriate acts and intends to engage in further actions in the future”. They are concerned about their dealings with the respondent in a very large number of respects. It is not presently necessary to address the many complaints made. 8 Pursuant to s 61(3) of the Associations Incorporation Act 1985 (SA), a proceeding under that Act which is transferred to the Magistrates Court “is a minor statutory proceeding”, and by s 3(2)(c) of the Magistrates Court Act 1991 (SA), a “minor civil action” is an action founded on, among other things, a minor statutory proceeding.1 9 A minor civil action may not be appealed to the Supreme Court pursuant to s 40 and, pursuant to s 38, a party may seek a review in the District Court which, 1 Martincic v Ethnic Broadcasters Incorporated [2024] SASC 15, [13]-[20] (Kimber J). -- 3 of 8 -- [2024] SASCA 33 Livesey P 2 pursuant to s 38(8) of the Magistrates Court Act 1991 (SA), is final and not subject to appeal. 10 In May 2023 the applicants filed interlocutory applications in the District Court concerning the appointment of litigation guardians and to amend the name of the respondent. A few days later a District Court Master ordered that the matter be transferred to the Magistrates Court of South Australia. 11 In August 2023, the respondent filed an amended defence and the applicants applied to strike out that defence. They also sought to have the proceedings transferred to the District Court or Supreme Court of South Australia. 12 The Magistrate with the conduct of these proceedings did not determine either application but adjourned both to 14 November 2023. The Magistrate also made orders concerning the pleadings. It would seem these orders are amongst those challenged. 13 On 3 October 2023, the applicants filed a notice of appeal to a single judge of the Supreme Court. The applicants also filed an application for what amounted to a stay of the proceedings until the determination of the single judge appeal. The Magistrate made an order to that effect on 25 October 2023. 14 The appeal was then heard by Kimber J and dismissed on the basis that it was not competent. That order is challenged. The applicants’ notice of appeal 15 On 28 February 2024, the applicants filed their notice of appeal, seeking leave to appeal from the Court of Appeal. 16 The applicants maintain that their action is not a “minor civil action” because they filed a claim against the respondent in the District Court of South Australia, claiming the sum of $250,000. 17 That amount is not particularised and, on the face of it, it is difficult to see how it might be justified. More fundamentally, the only cause of action ostensibly relied on by the applicants is whatever statutory rights arise under the Associations Incorporation Act 1985 (SA). Whilst it is conceivable there may be other causes of action, they have not been clearly pleaded. 18 After reviewing the notice of appeal, it was apparent that it was seriously defective. 19 The initial notice of appeal did not conform to the rules of court, particularly r 214.2 of the Uniform Civil Rules 2020 (SA). Critically, it did not identify precisely what errors the Magistrate and Kimber J were said to have made, nor why leave to appeal should be granted. -- 4 of 8 -- [2024] SASCA 33 Livesey P 3 20 By email dated 4 March 2024 the Court invited the applicants to consider r 214.2 of the Uniform Civil Rules 2020 (SA) regarding the content of a notice of appeal. The Court advised the applicants that an amended notice of appeal should be filed addressing the following before the matter was called over in the Court of Appeal: • What order is challenged? • What error was made? • Why should leave to appeal be granted? • What orders are sought on appeal? 21 Outlining these issues in correspondence so as to give the applicants an opportunity to remedy the defects accorded with the need to provide unrepresented parties with some assistance. As was recently explained in Gassy v The King:2 A litigant has a fundamental right to self-representation.3 Despite the prevalence of unrepresented litigants,4 it remains for the parties to define the issues and to select the evidence and arguments on which they rely.5 Nonetheless, the court must ensure that an unrepresented litigant is apprised of relevant rights and duties, and it must be vigilant to keep the proceedings free from error or misunderstanding.6 The assistance of the court must be viewed as adjunct to its duty to ensure a fair trial or, as here, a fair … hearing … 22 As the Court explained in that case, what is required to ensure a fair hearing will inevitably depend upon the particular facts and circumstances of any case. What is required to apprise some unrepresented litigants about their rights and duties will be unnecessary in the case of other unrepresented litigants who are familiar, at least in a general way, with adversarial processes.7 23 However, whilst some assistance may need to be given, the court cannot conduct the case for the unrepresented litigant:8 2 Gassy v The King [2023] SASCA 90, [33]-[34] (Livesey P, David JA and Stein AJA). 3 Cachia v Hanes (1994) 179 CLR 403, 415 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ). 4 See RD Nicholson J, “Litigants in Person” (2001) 5 The Judicial Review 181; Kirby AC, “Ten years in the High Court - continuity & change” (2005) 27 Aust Bar Rev 4, “a noticeable phenomenon of the past decade has been the increase in the number of self-represented litigants …”. See also Sackville AO, “Appellate Judging: Onwards and outwards towards mid-century” (2012) 86 ALJ 249, 252; Justice Rares, “Is access to justice a right or a service” (2015) 89 ALJ 777; Deputy Chief Justice John Faulks, “Self-Represented Litigants: Tackling the Challenge” (Conference Paper, Managing People in Court Conference, Canberra, February 2013); and Justice Emilios Kyrou, “Managing Litigants in Person” (Conference Paper, Managing People in Court Conference, Canberra, February 2013). 5 Crampton v The Queen (2000) 206 CLR 161, [19]-[20] (Gleeson CJ). See also Dietrich v The Queen (1992) 177 CLR 292, 335 (Deane J). 6 Cooling v Steel (1971) 2 SASR 249, 251 (Wells J). See also Hittmann v Police (1999) 202 LSJS 132 (Nyland J) and Gould v Police [2005] SASC 297 (White J). 7 Gassy v The King [2023] SASCA 90, [35] (Livesey P, David JA and Stein AJA). 8 Gassy v The King [2023] SASCA 90, [36] (Livesey P, David JA and Stein AJA). -- 5 of 8 -- [2024] SASCA 33 Livesey P 4 The High Court has recognised a distinction between the court apprising an unrepresented litigant of relevant rights and advising that litigant how those rights should be exercised.9 Whilst it is not for the court to conduct the case, the assistance given by the court may extend to advising about the existence of relevant rights and duties so that the unrepresented litigant can decide how to conduct the case … 10 24 Moreover, it is fundamental that any assistance given by the court must not detract from the neutrality of the court:11 The court must remain both neutral and impartial in its conduct of the hearing. The hearing must be fair to all parties. The court cannot advocate for any party, whether or not that party is represented. The court must act carefully to ensure that any assistance given to an unrepresented litigant does not detract from the need to ensure that the represented party also receives a fair hearing. This may at times give rise to “tension between maintaining the impartiality of the judicial officer and the provision of a degree of assistance”… 12 25 The applicants did not initially provide an amended notice of appeal. Instead, they provided a written submission which did not address any of the four questions outlined. 26 Yesterday, on 21 March 2024, the applicants filed an amended notice of appeal. It contains all of the material in the earlier notice but adds more than 20 new paragraphs. It identifies 22 errors made in the Magistrates Court, the District Court and the Supreme Court over the last 12 months. It is difficult to identify a decision made by a judicial officer in this litigation which is not attacked. The new notice culminates in a request for orders which: 1. Re-instate order number four of “FDN18”. 2. Strike out the respondent’s defence. 3. Require the entry of default judgments against the respondent in the Magistrates Court as well as in the District Court. 4. Or, alternatively, seek the transfer of the proceedings to a competent court. 9 MacPherson v The Queen (1981) 147 CLR 512, 535 (Mason J). The relevant principles affect judges and magistrates alike, Hopfner v Flavel (1990) 48 A Crim R 149, 156 (Mullighan J). 10 MacPherson v The Queen (1981) 147 CLR 512, 546-547 (Brennan J). See also R v Gidley [1984] 3 NSWLR 168, 181 (Hunt J); R v Zorad (1990) 19 NSWLR 91, 99; and R v White (2003) 7 VR 442, [33]-[34] (Chernov JA with whom Charles and Eames JJA agreed), “the judge must ensure the accused is fully aware of the legal position in relation to the substantive and the procedural aspects of the case without effectively advising him or her of what course should be followed, or unduly interfering in the Crown case as if the judge was the accused’s counsel”; and Jamal v Director of Public Prosecutions (DPP) [2013] NSWCA 355 (Gleeson JA, with whom Meagher and Latham JJ agreed). 11 Gassy v The King [2023] SASCA 90, [37] (Livesey P, David JA and Stein AJA). 12 Pezos v Police (2005) 94 SASR 154, [10] (Debelle J). See also Reisner v Bratt [2004] NSWCA 22, [4] (Hodgson JA, with whom Ipp JA agreed). In Malouf v Malouf [2006] NSWCA 83, [94], Mason P said that the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one of the litigants is self-represented. In Kelly v Westpac Banking Corporation [2014] NSWCA 348, [42] (The Court): “Courts cannot prefer the interests of self-represented litigants over those who are legally represented”. -- 6 of 8 -- [2024] SASCA 33 Livesey P 5 27 With all respect to the applicants, it is most unlikely that 22 errors were made by judicial officers in three courts of this State. This notice does not address the essential requirements of a notice of appeal. It is now more confusing than it was. 28 For example, FDN18 is the record of outcome setting out the orders made by the District Court Master on 8 May 2023. Order number four required the respondent to file a revised defence which takes into account that the second applicant was added as an applicant to the action. That was done. Why that order should be reinstated is not clear. I suspect the applicants see rather more significance in this order than is warranted. 29 Today, I have tried to explain how cases are managed before trial on an interlocutory basis so that they are ready to be heard at a trial. I have also explained the effect of the decision made by Kimber J, together with the operation of the minor statutory proceeding provisions of the Magistrates Court Act 1991 (SA). I have explained the proper role of an appeal court, particularly when considering an appeal against decisions on matters of practice and procedure. I have asked whether it might be better to continue this litigation in the Magistrates Court and explore mediation rather than pursue an appeal. Filing an amended notice of appeal? 30 Rule 1.5 of the Uniform Civil Rules 2020 (SA) stipulates that the object of the rules is “to facilitate the just, efficient, timely, cost-effective, and proportionate resolution or determination of the issues in proceedings governed by these Rules”. The rules apply to all litigants in the Court of Appeal, whether or not they are legally represented. 31 Compliance with the rules, at least in a substantial way, is necessary so as to provide procedural fairness to the opposing litigant and to avoid the limited resources of this Court being wasted on time-consuming hearings during which whether the party in default has a case is explored and attempts are made to articulate it. 32 It ought not be overlooked that the orders which are complained about in the Magistrates and District Courts concern matters of practice and procedure. Accordingly, this Court will usually give deference to the primary decision and exercise particular caution before intervening.13 In so far as the decision of Kimber J addressed the competency of the proposed appeal to him, it was necessary for the applicants to do more than simply assert that he was wrong. 33 The amended notice of appeal presently before the Court is discursive and difficult to follow. It does not comply with the rules in fundamental respects. The amended notice does not serve its essential purpose because it does not identify 13 Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177-178 (Gibbs CJ, Aickin, Wilson and Brennan JJ); McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [21]-[22] (Livesey P and Bleby JA), citing Harris Scarfe Ltd (In liq) v Ernst & Young (No 2) [2005] SASC 168, [14] (Bleby J). -- 7 of 8 -- [2024] SASCA 33 Livesey P 6 the matters required for the proper determination of an application for leave to appeal to the Court of Appeal. 34 In consequence, there will be inevitable confusion and delay associated with the hearing and determination of this matter. 35 I have considered whether it would be appropriate to adjourn this matter and order that another amended notice of appeal be filed. 36 Having reflected on the history of this matter, the issues apparently in dispute, the stage the litigation has reached in the Magistrates Court, the assistance given by this Court today and previously, together with the content of the initial and amended notices of appeal, I do not consider it appropriate to grant an adjournment, or to otherwise provide the applicants with any further opportunity to address the many fundamental defects in their amended notice of appeal. 37 The Court of Appeal or a single judge may, by r 212.5 of the Uniform Civil Rules 2020 (SA), strike-out an appellate document. The current amended notice of appeal does not conform to the rules, nor meet the basic requirements of a notice of appeal. In my judgment it cannot, by amendment, be made to do so. 38 In truth, if an appeal is seriously to be pressed an entirely new document and a new approach are required. Having said that, and whilst it is entirely a matter for the applicants, it is difficult to see why they would not be better off by simply getting on with their litigation in the Magistrates Court. Conclusion 39 In these circumstances, it is appropriate to strike-out the applicant’s notice of appeal under r 212.5(2)(b) of the Uniform Civil Rules 2020 (SA), and order that the applicants pay the respondent’s costs fixed in the amount of $1,500, payable within 60 days. -- 8 of 8 --