Allmark v Mossensons (a firm)
[2006] WASCA 127
•29 JUNE 2006
ALLMARK -v- MOSSENSONS (A FIRM) [2006] WASCA 127
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 127 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:131/2005 | 5 MAY 2006 | |
| Coram: | PULLIN JA BUSS JA | 29/06/06 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARLON ALLMARK MOSSENSONS (A FIRM) |
Catchwords: | Practice and procedure Application for leave to appeal from judgment of District Court Appeal to District Court from Local Court Which legislation governs appeal to Court of Appeal Appellant's appeal to District Court out of time and brought without leave Whether judgment of District Court a final judgment |
Legislation: | Courts Legislation (Amendment and Repeal) Act 2004 (WA) District Court of Western Australia Act 1969 (WA), s 79 District Court Rules (WA), O 5 r 5 Local Courts Act 1904 (WA), s 73, s 107 |
Case References: | Abbott v Minister for Lands [1895] AC 425 Carr v Finance Corporation (No 1) (1981) 147 CLR 246 Coles v Wood (1981) 1 NSWLR 723 Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374 Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990 Gallo v Dawson (No 2) (1992) 66 ALJR 859 Girando v Girando (1997) 18 WAR 450 House v The King (1936) 55 CLR 499 Jackamarra v Krakouer (1998) 195 CLR 516 Licul v Corney (1976) 50 ALJR 439 Riley v The State of Western Australia [2005] WASCA 190 Sanderson v Metropolitan (Perth) Passenger Transport Trust, unreported; FCt SCt of WA; Library No 950185; 22 March 1995 Saraswati v The Queen (1991) 172 CLR 1 Stanley v Layne Christensen [2006] WASCA 56 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALLMARK -v- MOSSENSONS (A FIRM) [2006] WASCA 127 CORAM : PULLIN JA
- BUSS JA
- Appellant
AND
MOSSENSONS (A FIRM)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WAGER DCJ
Citation : ALLMARK -v- MOSSENSONS (A Firm) [2005] WADC 174
File No : APP 29 of 2005
(Page 2)
Catchwords:
Practice and procedure - Application for leave to appeal from judgment of District Court - Appeal to District Court from Local Court - Which legislation governs appeal to Court of Appeal - Appellant's appeal to District Court out of time and brought without leave - Whether judgment of District Court a final judgment
Legislation:
Courts Legislation (Amendment and Repeal) Act 2004 (WA)
District Court of Western Australia Act 1969 (WA), s 79
District Court Rules (WA), O 5 r 5
Local Courts Act 1904 (WA), s 73, s 107
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr T N Petani
Solicitors:
Appellant : In person
Respondent : Mossensons
Case(s) referred to in judgment(s):
Abbott v Minister for Lands [1895] AC 425
Carr v Finance Corporation (No 1) (1981) 147 CLR 246
Coles v Wood (1981) 1 NSWLR 723
Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374
(Page 3)
Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990
Gallo v Dawson (No 2) (1992) 66 ALJR 859
Girando v Girando (1997) 18 WAR 450
House v The King (1936) 55 CLR 499
Jackamarra v Krakouer (1998) 195 CLR 516
Licul v Corney (1976) 50 ALJR 439
Riley v The State of Western Australia [2005] WASCA 190
Sanderson v Metropolitan (Perth) Passenger Transport Trust, unreported; FCt SCt of WA; Library No 950185; 22 March 1995
Saraswati v The Queen (1991) 172 CLR 1
Stanley v Layne Christensen [2006] WASCA 56
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Case(s) also cited:
Nil
(Page 4)
1 PULLIN JA: The Court began hearing an application by the respondent to strike out the appeal as incompetent, having been commenced without leave. The appellant first denied that leave was necessary, but after an adjournment amended his appeal notice to apply for leave to appeal.
2 The appeal is against a decision of Judge Wager in the District Court dated 21 September 2005. By this judgment her Honour struck out the appellant's appeal to the District Court.
3 That appeal was from Mr Bromfield SM, who had awarded judgment to the respondent for legal fees in the sum of $907.41. The appellant is self-represented here and was self-represented in the Magistrates Court and in the District Court.
4 The background is that the respondent, a legal firm, commenced proceedings against the appellant for a debt of unpaid fees of $907.41. The fees were charged by the respondent for acting to assist the appellant to collect unpaid rent from one of the appellant's tenants. In the proceedings brought by the respondent to recover their legal fees, the appellant filed an affidavit resisting a summary judgment application. In it he reveals that the appellant conferred with Mr Mossenson, that the respondent prepared a notice to quit, that there was correspondence and telephone attendances. It was clear that the dispute was about the quantum of the fees which were chargeable. The respondent's summary judgment application evidently failed. The case then went to trial before Mr Bromfield SM. During that time the respondent called two witnesses only. The evidence-in-chief of the second witness ran for approximately one hour and then the appellant proceeded to cross-examine for six days. A perusal of the transcript reveals that the appellant frequently pursued irrelevant lines of questioning, he frequently made statements rather than ask questions, he frequently commented on answers given to questions he did ask, he made improper comments about witnesses during cross-examination, he accused the Magistrate of not being impartial and favouring the respondent and he was repetitive in his line of questioning. On the sixth day, the Magistrate advised the appellant that he would disallow further cross-examination unless new material was raised. In the afternoon the Magistrate refused to allow cross-examination to continue further and the respondent then called their third and final witness. The appellant indicated he would cross-examine this witness on 10 February 2005.
5 On 10 February 2005, the appellant did not appear. A facsimile had been sent to the Court by the appellant's wife which read:
(Page 5)
- "You are advised that Mr Allmark is suffering from stress, fatigue and exhaustion and is unable to attend any hearing until he is well again."
- There was also a short medical certificate stating that the appellant had attended a doctor's surgery on 9 February 2005 and was unfit to attend "school/work" from 10 to 12 February 2005. The appellant did not send anyone to court to seek an adjournment. As a result, the respondent moved for judgment under s 73 of the Local Courts Act 1904 (WA) and his Worship entered judgment for the respondent against the appellant in the sum of $907.41. No reasons for decision were given.
6 The appellant then had two courses of action to him. One was to apply to set aside the judgment pursuant to an application under s 73 of the Local Courts Act and the other was to seek leave to appeal to the District Court from the judgment which had been entered against him pursuant to s 73. An application for leave to appeal to the District Court was necessary because s 107(1) of the Local Courts Act, which is set out below, required the grant of leave in the case of a judgment that was not a final judgment. The 10 February 2005 judgment of the Magistrate was not a final judgment.
7 The respondent submits that the appellant could have "elected" to "appeal the Magistrate's default judgment" but that he "elected to lodge, albeit belatedly, an application to the trial Magistrate to have the judgment set aside". In my opinion, no question of election arises. These were not alternative and inconsistent remedies. The appellant was entitled to pursue both courses of action, although it is true that if the judgment was set aside under s 73, the appellant would not thereafter have been able to pursue the appeal against the 10 February 2005 judgment.
8 The action taken by the appellant was to file an application under s 73. On 23 March 2005, Mr Bromfield exercised his powers under s 73 and made orders that:
"Subject to
(a) the payment into court of the sum of $907.41 within seven days of the date of the order
(b) the payment into court of the sum of $5000 by the defendant within 28 days as security for any costs order that may be made pursuant to order 37 rule 2 or any order
- that may be made in the future pursuant to s 31(3) of the Magistrates Court Civil Proceedings Act it is ordered:
- (i) judgment be set aside;
(ii) a new trial be granted;
(iii) the appellant pay the respondent's costs thrown away in respect to
(a) the hearing on the 10th February 2005;
(b) the preparation of the bill of costs for taxation and any fees paid thereon;
(c) costs of execution; and
(d) costs of the application, such costs to be taxed and payable forthwith.
- (c) in the event that the payments into court referred to in orders 1(a) and 1(b) hereof are not paid into court within the time stipulated therein or any extension of time by order of the court, it is ordered:
(i) the application be dismissed; and
(ii) the defendant pay the plaintiff's costs of the application in any event."
10 The respondent filed a summons to strike out the appeal. The summons sought the following orders:
(Page 7)
- "1. The Notice of Appeal be struck out on the basis that it was not filed in accordance with the time period prescribed by Order 8 Rule 5.
2. The Notice of Appeal be struck out on the basis that it does not comply with Order 8 Rule 3.
3. T he Notice of Appeal be struck out on the basis that it does not comply with Order 8 Rule 4.
4. The Notice of Appeal be struck out on the basis that the Appellant did not obtain leave pursuant to section 107(1)(b) of the Local Courts Act.
5. The Notice of Appeal be struck out pursuant to section 43(3) and/or 43(4) of the Magistrates Court (Civil Proceedings) Act.
6. The Notice of Appeal be struck out as an abuse of process given that the Appellant previously applied to have the judgment set aside in the Local Court.
7. The Appellant do pay the Respondent's costs of this application."
11 In relation to par 4 of the summons, the respondent filed detailed written submissions about why leave was required and, why in view of the fact that leave had not been obtained, the appeal was incompetent and should be struck out.
12 The appellant made an oral application for an extension of time. He made no application for leave to appeal.
13 Her Honour reserved her decision and on 21 September 2005 made an order striking out the notice of appeal. The result of the appellant's application for an extension of time is therefore subsumed in the order striking out the appeal. Her Honour's written reasons concentrated on whether an extension of time should be granted. Her reasons did not touch on the other grounds set out in the respondent's submissions. Following the delivery of those reasons, counsel for the respondent raised the issue about the lack of leave. Mr Petani said that he had read her Honour's written reasons and that:
"We also note section 107(1)(b) of the Local Courts Act. Obviously leave hasn't been obtained."
(Page 8)
14 After further discussion, Wager DCJ added:
"Alright, the order will be made then in accordance with the respondent's chamber summons to strike out the appeal, save for grounds 5 and 6. Accordingly the order made is as follows: the notice of appeal be struck out on the basis it was not filed in accordance with the time period prescribed by Order 8 rule 5; secondly, the notice of appeal be struck out on the basis that it does not comply with Order 8 rule 3.
Thirdly, the notice of appeal be struck out on the basis that it does not comply with Order 8 rule 4; fourthly, the notice of appeal be struck out on the basis that the appellant did not obtain leave pursuant to section 107(1)(b) of theLocal Courts Act, and finally that the appellant do pay the respondent's costs of this application. Are those orders clear?"
15 Her Honour then concluded the hearing by saying "That is then the order that is made and we will adjourn".
16 On 12 October 2005 the appellant filed an appeal notice in this Court. The appeal notice said that an appeal was allowed by virtue of s 79 of the District Court of Western Australia Act 1969 (WA), and stated that leave was not necessary. This Court warned the appellant that leave may be necessary and as a result the appeal notice has now been amended by the appellant to seek leave to appeal.
17 The first question to be considered is whether or not s 79 of the District Court Act applies. Section 79 reads:
"(1) A party to an action or matter who is dissatisfied with -
(a) a final judgment, may appeal from that judgment to the Court of Appeal;
(b) a judgment that is not a final judgment or an order remitting any action or matter from one court to another, may by leave of the Court of Appeal, appeal to the Court of Appeal,
notwithstanding that the action or matter to which the final judgment or judgment relates may have been brought in the Court by consent as provided in this Act.
…
(Page 9)
- (2) An appeal under this section shall be made in the same way as an appeal from a judgment or order of the Supreme Court or a judge thereof, may be made to the Court of Appeal, and in all respects the practice and procedure of the Court of Appeal in the appeal shall be the same as though the appeal were an appeal to the Court of Appeal from a judgment or order of the Supreme Court or a judge thereof.
(3) The Court of Appeal has jurisdiction to hear and determine the appeal accordingly.
…"
"(1) Subject to subsection (2), a party to an action or matter who is dissatisfied with -
(a) a final judgment may appeal from that judgment to the District Court;
(b) a judgment that is not a final judgment, may by leave of the District Court appeal to that Court,
notwithstanding that the action or matter to which the final judgment or judgment relates may have been brought in the Local Court by consent as provided in this Act.
(2) An appeal to the District Court shall be made in the time and manner prescribed, and with such security for costs of the appeal as prescribed, by the Rules of the District Court , and, subject to subsection (5), the District Court has the jurisdiction to hear and determine the appeal accordingly.
(3) A party to an appeal to the District Court who is dissatisfied with a judgment of the District Court on the appeal may by leave of the Supreme Court or a Judge thereof appeal from that judgment to the [Court of Appeal] constituted under the Supreme Court Act 1935.
(Page 10)
- (4) An appeal to the [Court of Appeal] shall be made in the time and manner prescribed, and with such security for costs of the appeal as prescribed, by the Rules of the Supreme Court, and that [Court of Appeal] has jurisdiction to hear and determine the appeal accordingly."
19 Thus, if s 107 had continued to exist at all material times, the appeal to this Court would have been governed by s 107(3) and leave would have been required by reason of that subsection. Section 107 of the Local Courts Act 1904 would have applied to confer the right of appeal and to govern the appeal rather than s 79 of the District Court Act, because s 107 of the Local Court Act was a specific provision authorising an appeal in these circumstances, whereas s 79 of the District Court Act was a general provision. The general provision would appear to confer a right of appeal or a right of appeal subject to leave, but while the specific provision in s 107(3) of the Local Courts Act existed, that was the provision which would govern the right of appeal to this Court. See by analogy the discussion about general and particular powers in Saraswati v The Queen (1991) 172 CLR 1 at 23 - 24.
20 However, the Courts Legislation (Amendment and Repeal) Act 2004 (WA) came into effect on 1 May 2005. That Act repealed the Local Courts Act. As at that date the appellant had no appeal on foot in this Court. In fact, the appeal in the District Court had not then been disposed of.
21 The question arises as to whether s 37 of the Interpretation Act would apply to permit an appeal to this Court under the repealed s 107(3). The appeal notice in this Court was not filed until 12 October 2005. In my opinion, s 37 would not apply. An accrued right is a real one and not one that is still in abstracto: Abbott v Minister for Lands [1895] AC 425. At 1 May 2005 the appellant had no accrued right to appeal to this Court. Thus, s 107 of the Local Courts Act has no application to the present appeal and did not itself confer any surviving right of appeal on the appellant.
22 Once s 107 was repealed, s 79 of the District Court Act applied to confer the right to appeal to this Court. In effect, this is the result that both parties contended for and having considered the provisions, I agree with their submissions.
(Page 11)
23 The next issue then is whether the decision of Judge Wager is a final judgment or not. Section 79(1)(b) of the District Court Act requires a grant of leave if the judgment appealed against is not a final judgment. An interlocutory judgment is not a final judgment. An interlocutory judgment is one which involves no final adjudication of substantive rights but deals with ancillary questions of procedure. The fact that such a procedural decision may effectively prevent a party from proceeding with an action does not alter the classification of its character or nature. See Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374 at 379 per Kirby P and Glass JA. See also Licul v Corney (1976) 50 ALJR 439 and Carr v Finance Corporation (No 1) (1981) 147 CLR 246.
24 The decision of the learned District Court Judge was one which did not decide the merits of the appeal. Her Honour struck out the appeal because it was out of time, because the appellant's application for an extension of time was refused and because leave had not been obtained. In my opinion, the judgment is therefore an interlocutory judgment and not a final judgment. As a result, leave of the Court of Appeal is required before an appeal may be instituted. Without leave the appeal is incompetent. See Coles v Wood (1981) 1 NSWLR 723 at 727.
25 While I am referring to legislation, I should at this point note that when the appellant instituted his appeal to the District Court, s 107 of the Local Courts Act had not been repealed and so the appeal to that Court was governed by s 107. The judgment of Mr Bromfield SM on 10 February 2005 was not a final judgment for the same reasons that the judgment of Judge Wager was not a final judgment. As a result, leave was required before the appellant could pursue an appeal in the District Court. Leave being required both in relation to an appeal in the District Court and in relation to the appeal to this Court, it is appropriate at this stage to mention the principles which govern the grant of leave to appeal.
26 Leave will usually only be granted where the decision below was wrong, or at least attended with sufficient doubt to justify the granting of leave, and if in addition substantial injustice would be done by leaving the decision unreversed. See Wing Luck Foods v Lay Choo Lim [1989] WAR 358 at 360 and Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990; Stanley v Layne Christensen [2006] WASCA 56 at [15] and [58]. These are not rules but guidelines. The Court has a residual discretion to do justice in any case requiring leave even if the guidelines are not satisfied. See Sanderson v Metropolitan (Perth)
(Page 12)
- Passenger Transport Trust, unreported; FCt SCt of WA; Library No 950185; 22 March 1995.
27 Before I scrutinise Judge Wager's reasons for decision, I should also refer to the principles governing an application for an extension of time. Matters to be considered in relation to such an application include the length of the delay and the reasons for the delay. The need for a cogent explanation increases as the time increases: Girando v Girando (1997) 18 WAR 450 at 454. Even if the delay is explained, the application for an extension of time should be refused if the appeal would have no prospects of success: Gallo v Dawson (No 2) (1992) 66 ALJR 859 at 860. See also Jackamarra v Krakouer (1998) 195 CLR 516. In Gallo v Dawson (supra) McHugh J made the point that the grant of an extension of time is not automatic and that the object of the rule is to ensure that the rules which fix times for doing acts do not become instruments of injustice. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time. His Honour also made the point that it is always necessary to consider the prospects of the applicant succeeding in the appeal and to bear in mind that in an application for an extension of time, upon the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application is granted. McHugh J concluded his review of the law by quoting from a Privy Council case which made the point that the rules of the court must prima facie be obeyed and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion.
Judge Wager's decision
28 The first question is whether her Honour's decision was wrong or attended by doubt. Her Honour set out the history of the litigation and said at [7], in relation to the decision of 10 February 2005, that:
"It should be noted that rather than showing any lack of enthusiasm to attend the court proceedings, Mr Allmark had appeared in person and vigorously taken part in the hearing for a total of seven days. Further, the court had received notification that he was unable to attend any hearing until he was well again, implying an intention to be present and to continue with the trial. The presiding Magistrate nevertheless
(Page 13)
- proceeded to exercise the court's discretion to award judgment. No reason for decision was given in relation to the order that the defendant pay the plaintiff's costs of the action, non-routine scale."
29 Her Honour then referred to the fact that the appellant had filed an application for rehearing and that, on 23 March 2005, Mr Bromfield SM made the orders which I have set out above. Her Honour recorded the fact that the appellant objected to the fact that $5000 was required to be paid into court and the other orders, and noted that he had not filed an appeal in the District Court in relation to these complaints. Her Honour noted that the appellant had failed to pay the sum ordered and noted that there was no suggestion that the appellant did not have the ability to comply. Her Honour noted that the failure to pay the security was the reason why the rehearing had not proceeded in the Magistrates Court. Her Honour referred to some other submissions but did not rule upon them and then concluded at [12]:
"It was open to Mr Allmark to comply with the order made on 23 March 2005 and it has been his choice not to comply. I do not consider that this Court should exercise its discretion to extend the period set by O 8 r 5 District Court Rules in relation to the filing of the notice of appeal in light of his conduct in respect of the order of 23 March 2005."
30 I have already set out above the submissions which were made and the additional reason which was then given by her Honour for striking out the appeal, namely that leave had not been granted.
31 Before commenting on her Honour's reasons for decision, I should refer to Mr Bromfield SM's decision on 10 February 2005. In the case of House v The King (1936) 55 CLR 499 reference was made to the usual grounds for challenging a discretionary order. The Court concluded however that, if the usual grounds do not appear, but the decision was unreasonable or plainly unjust, then error may be inferred, and such error would also justify intervention by an appellate court.
32 This is a case where it is not possible to specify precisely why Mr Bromfield SM came to the decision he did because he gave no reasons. However, in my opinion, his decision was manifestly wrong. The appellant clearly wished to defend the claim. As Judge Wager made clear, this was obvious from the appellant's conduct of the litigation up until 10 February 2005. In the face of the medical certificate and the
(Page 14)
- facsimile, the case should have been adjourned on 10 February 2005. In my opinion the Magistrate was manifestly wrong in those circumstances to enter judgment.
33 Furthermore, the complete absence of reasons for decision was also an error of law. See Riley v The State of Western Australia [2005] WASCA 190 at [32].
34 Judge Wager did not express any opinion about whether the Magistrate's decision was wrong or not. The merit of any appeal if time were to be extended was a relevant consideration and her Honour failed to give consideration to that matter. Her Honour touched on the subject in the paragraph quoted above, but did not go on to the obvious next step of concluding that the Magistrate's decision was manifestly wrong. Thus, in my opinion, Judge Wager erred by not giving consideration to, and deciding, an issue that was of relevance to the application for an extension of time.
35 It is open to infer that both Mr Bromfield SM and Judge Wager saw the appellant as a troublesome litigant, who was wasting the time of the court, inconveniencing the other party, and either deliberately or inadvertently conducting himself improperly. Even if those points were true, (a matter on which it is unnecessary to express an opinion) the situation should not have reached the point it did. The Magistrate, in my opinion, should not have allowed cross-examination of one witness to continue for six days. He should have limited time for cross-examination much earlier than he did. This would have given the appellant much less opportunity to make speeches, to make statements and to make improper comments about the witness and the court. Entering judgment was not the proper way to solve these problems. This manifestly wrong decision on 10 February 2005 was not identified by Judge Wager.
36 All of this does not, however, mean that this Court must grant leave to appeal. This is because, by not appealing the decision of 10 February 2005 within time, the appellant opened up the requirement that the appellant explain why there had been a delay and it brought into play discretionary considerations.
37 As to the latter, it became relevant that the injustice worked by the entry of judgment on 10 February 2005 was (subject to conditions) overcome by the subsequent order on 23 March 2005 to set aside the judgment. It is also relevant that it was the appellant's choice not to comply with conditions which brought about the result that the judgment
(Page 15)
- was not then set aside. It is relevant that the conditions imposed have not been challenged, even though at one stage the appellant apparently considered the possibility of appealing against the 23 March 2005 decision but at the last moment decided to appeal against the 10 February 2005 decision. It is relevant that the appellant told the Magistrate on 23 March 2005 that he could not pay moneys to satisfy the conditions and yet subsequently was able to pay $26,000 to meet costs and fees incurred by the bailiff in execution along with the full amount of the claim. It is relevant to observe that the appellant did not dispute that the respondent carried out some legal services and that in consequence, the dispute must have been about the quantum of the claim. It is relevant that there is no evidence that the appellant made any offer of settlement of a lesser sum. It is therefore relevant to take into account that the respondent would almost certainly have succeeded in recovering at least some of the fees and, in consequence, would almost certainly have recovered a substantial amount of the costs of the legal action and that in practical terms the conditions imposed on 23 March 2005 (even though they should not have been necessary because of the manifestly wrong decision of 10 February 2005) were nevertheless a reflection of the likely outcome of the proceedings or any retrial, even if the appellant succeeded in gaining a reduction in the quantum of the claim. It is relevant that the appellant has shown a lack of understanding about the need for some proportionality between the amount in issue and the time spent in resisting the claim.
38 All of these things were factors which, in my opinion, Judge Wager should have put in the scales to weigh against the fact that the decision of the Magistrate was a manifestly wrong decision. Judge Wager did none of this. She merely stated that because it was open to the appellant to comply with the orders of 23 March 2005 and that it was his choice not to comply, she would therefore not exercise her discretion to extend time.
39 I should add that it is, and was, relevant that no satisfactory explanation has been given for the delay in appealing the 10 February 2005 decision. It is possible that the appellant believed that he would succeed in having the 10 February 2005 judgment set aside and that in consequence there would be no need to appeal to the District Court. Alternatively, it may be that the appellant never thought about appealing while he had his application to set aside the judgment on foot. Whatever the situation, neither this Court nor the Court below was provided with any satisfactory explanation and it is not for this Court to speculate about the subject. The obligation was on the appellant to give his explanation to the court.
(Page 16)
40 Apart from all of the considerations referred to above, it is also necessary on the application for leave to this Court to consider whether the appeal to the District Court was competent or not. If it were incompetent, then even if Judge Wager otherwise erred, leave could not be granted to appeal to this Court.
41 The judgment of the Magistrate was not a final judgment. This is so for the reasons set out above. The result was that leave to appeal to the District Court was necessary whether the appeal was brought within time or out of time. Despite being put on notice that the application was being made to strike out because no leave had been granted, and despite written submissions to this effect being provided to the appellant by the respondent before the hearing, no application for leave to appeal to the District Court was, or has ever, been sought. When alerted to the delay in bringing the appeal in the District Court, the appellant responded to this by orally seeking an extension of time, but when alerted to the lack of leave he did not seek leave to appeal. The result is that without leave, the appeal to the District Court was incompetent. On that basis the decision of Wager DCJ to strike out the appeal to the District Court because of the lack of leave, was correct.
Should leave to appeal be granted by this Court?
42 As a result of the foregoing, leave to appeal should not be granted by this Court because the decision of Wager DCJ to strike out the appeal because of the absence of leave was not wrong or attended by doubt. It was correct.
43 It is therefore not strictly necessary to comment on Judge Wager's decision not to grant an extension of time, but for completeness I will do so.
44 In my opinion, taking into account all of the countervailing factors, and recognising that wrong decisions have been made both by the Magistrate and in the District Court, there is no substantial injustice. The appellant had the right to continue with his defence. He succeeded in having the Magistrate's judgment set aside. The appellant chose not to comply with conditions which were imposed. He has not appealed against the order imposing those conditions and I will, and must, accept that the conditions were properly imposed. The Magistrate had the opportunity of watching the proceedings unfold and when he limited cross-examination he held that the appellant, despite many warnings, was unreasonably prolonging the proceedings by lengthy and repetitive cross-examination. The appellant cannot turn his choice not to comply
(Page 17)
- with, or seek leave to appeal against, the conditions imposed on 23 March 2005 into a complaint of injustice. He made a tactical decision not to comply with, and not to seek leave to appeal against, the conditions. I also refer again to the factors which are set out in par [37]. I would refuse leave to appeal.
45 BUSS JA: I agree with Pullin JA.
27
14
4