ZLATAN MARTINCIC In Person v ETHNIC BROADCASTERS INCORPORATED [2024] SASC 15

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (HER HONOUR MAGISTRATE VOZZO) CIV-23-001701 Appellant: DMITRY MARTINCIC BY HIS LITIGATION GUARDIANS ZLATAN MARTINCIC & OLGA SHMAKOVA In Person Second Appellant: ZLATAN MARTINCIC In Person Respondent: ETHNIC BROADCASTERS INCORPORATED Counsel: MR E BELPERIO - Solicitor: BELPERIO CONNELL Hearing Date/s: 31/01/2024 File No/s: CIV-23-011186 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates 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 INCORPORATED [2024] SASC 15 Judgment of the Honourable Justice Kimber 5 February 2024 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT The appellants appeal interlocutory orders made by a Magistrate in a proceeding that is a minor civil action. In the minor civil action, the appellants claim that the respondent has engaged in acts which are inappropriate or oppressive. The appellants filed interlocutory applications in the Magistrates Court seeking to strike out the Defence of the respondent and transfer the proceedings to the District Court or the Supreme Court. The Magistrate adjourned both applications and they are yet to be determined. At the same time, the Magistrate made some other orders. Held, dismissing the appeal: 1. The appeal is not competent. The proceedings in the Magistrates Court are a minor civil action. There is no right of appeal to the Supreme Court in a minor civil action. -- 1 of 6 -- -- 2 of 6 -- MARTINCIC & ANOR v ETHNIC BROADCASTERS INCORPORATED [2024] SASC 15 Magistrates Appeal: Civil KIMBER J: 1 This is an appeal from orders made in the Magistrates Court. 2 The first appellant is Dmitry Martincic (by litigation guardians Zlatan Martincic and Olga Shmakova) and the second appellant is Zlatan Martincic. The respondent is Ethnic Broadcasters Incorporated. 3 On 12 September 2023, a Magistrate made orders with respect to two interlocutory applications filed by the appellants. The first such application is FDN 21 and is an application to strike out a Defence filed by the respondent on 21 August 2023. The second such application is FDN 23 and is an application to seek an order, among other things, that the proceedings be transferred to the District Court of South Australia or to this Court. The Magistrate has not determined either interlocutory application. To the contrary, on 12 September 2023, the Magistrate ordered that both applications be adjourned to 14 November 2023. No hearing took place on 14 November 2023. That is because, having filed a Notice of Appeal in this Court on 3 October 2023, the appellants filed an interlocutory application in the Magistrates Court seeking that the proceedings in that Court not be advanced until this appeal was determined. That order was made by a Magistrate on 25 October 2023. 4 The orders adjourning FDN 21 and FDN 23 were not the only orders made by the Magistrate on 12 September 2023. The Magistrate also vacated some orders previously made and made orders with respect to the filing of an amended Claim, an amended Defence and any Reply to the amended Defence. 5 I mean no disrespect by observing that the submissions made by Mr Zlatan Martincic in this Court on behalf of both appellants reflect both that he is not legally trained and his confusion about why the orders just mentioned were made if FDN 21 is yet to be determined. It is not necessary for me to determine why the Magistrate took that approach and I have not attempted to do so, but it may be that she simply wished to ensure the matter progressed in the event the application the subject of FDN 21 was dismissed. 6 Finally, on 12 September 2023, the Magistrate also ordered that any party seeking to make an election under s 3(4) of the Magistrates Court Act 1991 (SA) (MCA) was to file an election form by 7 November 2023. 7 On 3 October 2023, the appellants filed a Notice of Appeal in this Court purporting to appeal the orders made on 12 September 2023. The written and oral submissions on behalf of the appellants particularly focus upon the orders -- 3 of 6 -- [2024] SASC 15 Kimber J 2 adjourning FDN 21 and FDN 23, but the Notice of Appeal seeks to advance complaints which are arguably broader than just those orders. 8 It is not necessary to set out the grounds of appeal in detail as, for the reasons which follow, the appeal is incompetent and must dismissed. Procedural history 9 Given the incompetence of the appeal, it is not necessary to traverse every aspect of the history of the proceedings. 10 On 20 February 2023, a Claim (FDN 1) was filed in the District Court of South Australia seeking a determination that the applicant, described in FDN 1 as ‘Dmitry Martincic By Litigation Guardian Olga Shmakova’, and his parents or guardians are full financial members of the respondent. The Claim sets out that it is pursuant to the Associations Incorporated Act 1985 (SA). The legal basis for the Claim is expressed as being that an ‘association has engaged in oppressive or inappropriate acts and intends to engage in further actions in the future’. The Claim sets out what are said to be the particulars, general nature and general effect of the ‘oppressive and inappropriate acts’. The respondent filed a Defence in the District Court on 22 March 2023 and a Reply was filed on 12 April 2023. On 5 May 2023, the appellants filed interlocutory applications in the District Court with respect to issues relating to litigation guardians and to amend the name of the respondent as set out in the original Claim. On 8 May 2023, a District Court Master ordered that Mr Zlatan Martincic be added as the second applicant, that the matter be transferred to the Magistrates Court of South Australia and that the respondent file a revised Defence. 11 On 21 August 2023, a Magistrate ordered that the Respondent file an amended Defence that day to address the consequential amendments to the Claim arising from the orders made by the District Court Master on 8 May 2023. The Respondent then filed an amended Defence on 21 August 2023, with changes in markup. On 25 August 2023, the appellants filed the interlocutory applications FDN 21 and FDN 23. The competence of the appeal 12 Before the appeal was heard, the parties were advised that the Court would be assisted by submissions with respect to whether the appeal was competent. The respondent directed submissions to that issue but, likely because of a lack of legal training, little, if anything, was said about that on behalf of the appellants. Certainly no submission was advanced on behalf of the appellants with respect to the legislative provisions below. 13 For the reasons which follow, the appeal is not competent. 14 The proceeding in the Magistrates Court is a minor statutory proceeding. As set out above, the Claim is one pursuant to the Associations Incorporations Act 1985 (SA). Section 61 of that Act relevantly provides: -- 4 of 6 -- [2024] SASC 15 Kimber J 3 61—Oppressive or unreasonable acts (1) A member or former member of an incorporated association may apply to the Supreme Court or the Magistrates Court for an order under this section on the ground that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable. … (3) A proceeding— (a) on an application made to the Magistrates Court under this section; or (b) on an application made to the Supreme Court under this section but transferred under section 19 of the Magistrates Court Act 1991 to the Magistrates Court, is a minor statutory proceeding for the purposes of the Magistrates Court Act 1991. 15 The proceeding in the Magistrates Court is a minor civil action. This is because s 3(2)(c) of the MCA provides that a minor civil action is an action founded on, among other things, a minor statutory proceeding. 16 Section 40 of the MCA does not provide a right of appeal to the Supreme Court in a minor civil action. Section 40(1) provides: 40—Right of appeal (1) A party to a civil action (except a minor civil action) may, in accordance with the rules of the Supreme Court, appeal against any judgment given in the action. 17 Section 38 of the MCA, among other things, provides for a right to apply for review after a judgment is given in a minor civil action but any such review is not in this Court. Section 38(3) provides: 38—Minor civil actions … (3) After giving judgment in a minor civil action, the Court— (a) should advise the unsuccessful party of his or her right to apply for review of the proceedings by the District Court; and (b) should give the successful party any advice or assistance as to the enforcement of the judgment that the Court considers appropriate in the circumstances; and (c) if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any further action that appears appropriate in view of the results of that investigation. 18 Section 38(6) provides: (6) The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter. -- 5 of 6 -- [2024] SASC 15 Kimber J 4 19 Section 38(8) provides that a decision of the District Court on a review is final and not subject to appeal. 20 It follows from the above there is no right of appeal to this Court with respect to any order made by the Magistrate in these proceedings. The appeal is incompetent and must be dismissed. 21 My analysis of the above legislative provisions should not be taken to suggest that I am of the view that any order made to date in the Magistrates Court is amendable to review pursuant to s 38 of the MCA. I express no view about that. Nevertheless, I note that, as already set out, the Magistrate is yet to determine either FDN 21 or FDN 23. Conclusion 22 The appeal is dismissed. -- 6 of 6 --