Chan v GUNWARRIE Pty Ltd - [2006] WADC 120

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CHAN & ORS -v- GUNWARRIE PTY LTD & ORS [2006] WADC 120

CORAM: GOETZE DCJ

HEARD: 18 JULY 2006

DELIVERED : 11 AUGUST 2006

FILE NO/S: CIVO 53 of 2006

BETWEEN: STEPHEN TAI SUN CHAN
First Plaintiff
RICHARD CLIFTON CLAPIN
KATHRYN JANE VERNON CLAPIN
Second Plaintiffs
SATCHELL JOHN PEACOCK
JANET MARY PEACOCK
Third Plaintiffs
RUSSELL GUY HILDER
MAUREEN PATRICIA HILDER
SIMON GUY HILDER
Fourth Plaintiffs
FRANCIS JOHN HAY
DENISE MARGARET HAYNES
Fifth Plaintiffs
AND
GUNWARRIE PTY LTD
First Defendant
KELLIE ANNE SHIELDS
Second Defendant
SCOBEC & CO PTY LTD
Third Defendant
SCOTT EDWIN POWELL
Fourth Defendant

Catchwords:

Negligence - Breach of statutory duty - Application for leave to bring action under s14(4) of the Aerial Spraying Control Act 1966 - Requirements for grant of leave - Application to remit action to Supreme Court upon finding of lack of jurisdiction to grant leave

Legislation:

Aerial Spraying Control Act 1966, s 14, s 15
Crown Suits Act 1947
District Court of Western Australia Act 1969, s 6, s 50, s 55, s 57, s 76, s 77, s 78
Interpretation Act 1935, s 3(1), s 5

Limitation Act 1935, s 47A

Result:

District Court lacks jurisdiction to grant leave to bring action
Issue for determination of leave remitted to Supreme Court

Representation:

Counsel:

First Plaintiff                :     Mr B G Bradley
Second Plaintiffs           :     Mr B G Bradley
Third Plaintiffs             :     Mr B G Bradley
Fourth Plaintiffs            :     Mr B G Bradley
Fifth Plaintiffs              :     Mr B G Bradley
First Defendant             :     Mr J M Courtney
Second Defendant         :     Mr J M Courtney
Third Defendant           :     Mr R J Price
Fourth Defendant          :     Mr R J Price

Solicitors:

First Plaintiff                :     Bradley & Bayly
Second Plaintiffs           :     Bradley & Bayly
Third Plaintiffs             :     Bradley & Bayly
Fourth Plaintiffs            :     Bradley & Bayly
Fifth Plaintiffs              :     Bradley & Bayly
First Defendant             :     Srdarov Richards Burton
Second Defendant         :     Srdarov Richards Burton
Third Defendant           :     D G Price & Co
Fourth Defendant          :     D G Price & Co

Case(s) referred to in judgment(s):

Chantec Pty Ltd v Comgroup Supplies Pty Ltd [2001] WASCA 238
Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Limited (1991) 5 WAR 208
Elliott v Palmiero and Petrucci (1978) 1 SR (WA) 173
Hondros and Tholet v Chesson [1981] WAR 146
Smith v Brown [1978] WAR 157
Trimble v Piggott (1995) 14 WAR 329

Case(s) also cited:

Baker v Albany Shire Council (1994) 14 WAR 46
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32
Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33
Cadwallender v The Public Trustee [2003] WASC 72
Grassby v The Queen (1989) 168 CLR 1
Hunter v Morris [2000] WASCA 23
O'Callaghan v Lloyd Aviation Pty Ltd [1982] VR 387
Perry v City of Armadale [2004] WASC 1
Quinlivan v Portland Harbour Trust [1963] VR 25
R v Cheshire County Court Judge and United Society of Boilermakers; Ex parte Malone [1921] 2 KB 694
Ridgeway & Ors v The Shire of Moora (1986) A Tort Rep 80033

GOETZE DCJ: This matter was commenced by originating summons (appearance not required) on 10 May 2006. By that summons, the plaintiffs seek leave pursuant to s 15(2) of the Aerial Spraying Control Act to commence or proceed with actions for damages against the defendants in respect of damage to canola crops caused by or arising out of aerial spraying operations carried out on Gunwarrie in the Frankland District in September 2004.
The Aerial Spraying Control Act 1966 ("the ASC Act") specifies in its heading that it is "an Act relating to the spraying of agricultural chemicals from aircraft and to make provision for incidental and other purposes". It controls aerial spraying by requiring persons engaged in that activity to be certificated and insured. It also regulates injury caused by spray drift or aerial spraying. Thus, the Act provides:
"14(4)Where a person alleges that crops, trees, pastures or other growth or animal life on his land or land under his control have been injuriously affected by spray drift or aerial spraying, he shall notify the Director in writing to that effect —
(a)within 14 days of observing the damage; and
(b)at least 14 days or such lesser number of days as the Director in any particular case permits, before the crops are harvested or picked or before he destroys or causes to be destroyed the trees, pastures or other growth or animal life that he alleges have been so affected.
(5)Where the Director receives a notice under and in accordance with subsection (4), he shall, as soon as he ascertains the name of the owner of the aircraft from which the aerial spraying operations that are alleged to have caused damage, were carried out, give to that owner a copy of the notice.
(6)A person shall not, in a notice given pursuant to subsection (4), knowingly make any allegation that is false or misleading.
15(1)Subject to subsection (2), where a person fails to give the notice required to be given by section 14(4), no action claiming damages shall be brought in any Court against any person in respect of the loss of or damage to the crops, trees, pastures or other growth or animal life alleged to be caused by or arising out of or in connection with spray drift or aerial spraying.
(2)Notwithstanding that a notice has not been given as required by section 14(4), application may be made to a Judge for leave to commence such an action as is referred to in subsection (1), and if the Judge considers that the failure to give the required notice was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure, the Judge may if he thinks it is just to do so, grant leave to bring the action, subject to such conditions as the Judge thinks it is just to impose.
(3)Before an application is made under subsection (2) the person intending to make the application shall give notice in writing to the prospective defendant of the proposed application and the grounds on which it is to be made at least 14 days before the application is made."
The plaintiffs readily concede that contrary to the provisions of s 14(4) of the ASC Act, they did not give the required notice in writing to the Director of Agriculture.
Hence, the plaintiffs' application is made pursuant to s 15(2) of the ASC Act. This is remarkably similar to s 47A(3)(a) of the Limitation Act and s 6(3)(a) of the Crown Suits Act which were both enacted in 1954. These two Acts, like the ASC Act, both require notice to be given before any action can be commenced and they both limit the period in which the action can be brought, but they also enable the granting of leave to commence an action in specified circumstances.
However, there is an essential difference in that by each of the Limitation Act and the Crown Suits Act, the application for leave is made to the court having jurisdiction to hear the action. In this respect these Acts are to be distinguished from s 15(2) of the ASC Act which provides that:
"application may be made to a Judge for leave to commence such an action as is referred to in subsection (1) …".
The question is whether "Judge" in s 15(2) of the ASC Act includes a District Court Judge. This requires examination of the ASC Act and the District Court of Western Australia Act ("DC Act").
The ASC Act was assented to in 1966. By Act No 31 of 1968 (assented to 4 November 1968) s 14(1)(d), (5) and (6) were added. By Act No 45 of 1970 (assented to 8 October 1970) s 10 was repealed and re‑enacted. Act No 31 of 1968 and Act No 45 of 1970 were both operative from the date on which the principal Act came into operation, being 21 May 1971. The ASC Act does not define "Judge".
Section 3(1) of the Interpretation Act provides that:
"(1)The provisions of this Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of this Act, unless in relation to a particular written law —
(a)express provision is made to the contrary;
(b)in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application;
… ."
Section 5 of the Interpretation Act 1984 goes on to provide that:
"In this Act and every other written law —
…
"Judge" means a Judge, acting Judge or auxiliary Judge of the Supreme Court;
…"
There is no contrary express provision in the ASC Act that "Judge" does not mean a Supreme Court Judge. Further, there is nothing in the intent and object of the ASC Act or anything in the subject or context of the ASC Act which is inconsistent with "Judge" in s 15(2) thereof meaning a Supreme Court Judge.
Section 15(1) of the ASC Act commences with:
"Subject to subsection (2), where a person fails to give the notice required to be given by s 14(4), no action claiming damages shall be brought in any Court against any person …"
In 1966 when the ASC Act was assented to, the choice of "any Court" in which to bring action was limited to the Supreme Court or the Local Court. If a prospective claimant had not given notice to the Director as required by s 14(4) of the ASC Act then, the claimant would require leave of "a Judge". On a straightforward reading of the ASC Act in 1966, that could only be leave from a Supreme Court Judge, not a Local Court Magistrate.
The DC Act, being Act No 84 of 1969, was assented to on 17 November 1969 and came into operation on 1 April 1970.
The DC Act had not been enacted in either 1966 when the ASC Act was assented to, or in November 1968 when s 14 of that Act was amended. Even with the repeal and re‑enactment of s 10 of the ASC Act in October 1970, which post‑dates the commencement of the DC Act, Parliament did not then amend s 15(2) of the ASC Act, so that it either widened the definition of "Judge" to include a District Court Judge or to replicate s 47A(3)(a) of the Limitation Act and s 6(3)(c) of the Crown Suits Act.
From this, it is reasonable to conclude that Parliament intended to only grant jurisdiction to a Judge of the Supreme Court to hear applications for leave to commence actions pursuant to s 15(2) of the ASC Act. Parliament could have, but has not at any time, amended s 15(2) in terms of s 47A(3)(a) of the Limitation Act or s 6(3) of the Crown Suits Act.
The civil jurisdiction of the District Court is found in Pt III Div 2 of the DC Act. Relevantly, it deals with "actions" and "matters" within its jurisdiction.
An "action" is defined in s 6 of the DC Act and, "means a civil proceeding commenced by writ or in such other manner as is prescribed by Rules of Court …". A "matter" is defined in s 6 of the DC Act as "a proceeding in the Court that is commenced otherwise than by writ". Hence, the present originating summons, being "prescribed by Rules of Court", is both an "action" and a "matter" within the meaning of s 6 of the DC Act.
The present originating summons is not "a personal action" within the meaning of s 50(1) of the DC Act. In particular, under s 50(1)(f) it is not an action or matter "in respect of which jurisdiction is given to [this] Court by or under" the DC Act or the ASC Act. Further, this originating summons does not fit within s 50(2) of the DC Act.
Section 55 of the DC Act does not assist the plaintiffs. That is because this "action or matter [is not] within [this Court's or a Judge's] … jurisdiction". There is nothing further in the DC Act to assist the plaintiffs as there is no source of power to grant jurisdiction.
In Smith v Brown [1978] WAR 157 at 159, Burt CJ made the point that:
"If the power exists its source must be found within the statute law either expressly or by 'implication according to accepted standards of statutory construction and it would be inaccurate to describe it as an "inherent jurisdiction" which, as the name indicates, requires no authorising provision.' "
Counsel for the plaintiffs submitted that I should regard the grant of leave as "ancillary" to the intended action to be brought on behalf of the plaintiffs against the defendants. That submission, however, puts "the cart before the horse", as it was expressed by counsel for the defendants. In this regard, I am guided by Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Limited (1991) 5 WAR 208 at 217 ‑ 218 referring to Hondros and Tholet v Chesson [1981] WAR 146 at 147 in which Burt CJ said:
"Using the words of Atkin LJ (as he then was) with reference to the jurisdiction of a County Court under the County Courts Act 1888: 'If there is a money claim within the jurisdiction of the court, then no doubt the court can give ancillary relief by way of declaration or injunction, but if there is no money claim within the jurisdiction of the court, or if there is no money claim at all, then the court has no jurisdiction to give that relief.' See De Vries v Smallridge [1928] 1 KB 482 at 488.
Those words would, of course, be equally applicable to the other heads of District Court civil jurisdiction to be found in s 50(1) of the Act."
See also Elliott v Palmiero and Petrucci (1978) 1 SR (WA) 173 at 177.
In Commercial Developments Pty Ltd v Mercantile Mutual, Malcolm CJ observed at p 218 that in his opinion:
"… in such a case as the present where, on the face of it, a declaration is sought without any consequential relief, the jurisdiction to grant the declaration cannot be described as 'ancillary'."
Further, at p 219 he continued that:
"… nothing in s 55 or s 57 of the District Court Act gives the District Court jurisdiction to grant equitable relief against a third party which the court would be unable to grant against the third party if it were sued in a separate action. Section 55 operates with respect to any action in matters within the jurisdiction of the District Court. Section 57(1) applies only to 'matters … cognizable by the Court'."
It would be inaccurate to describe the leave presently sought by the plaintiffs as ancillary to a separate, but intended action. The application for leave is a "matter" in its own right. It is only once leave is granted to the plaintiffs to bring their claim that there will be a money claim within the jurisdiction of this Court.
Hence, I have come to the conclusion that the originating summons is not an "action" or "matter" within the jurisdiction of this Court. Although the intended monetary claim for compensation may ultimately be within this Court's jurisdiction, it is not possible to bring such a claim without leave. The application for leave should be made to a Supreme Court Judge.
Given this finding, counsel for the plaintiffs would now have me remit this action to the Supreme Court pursuant to s 77 of the DC Act which provides:
"77.Where it appears to a District Court judge that any action or matter brought before the Court ought from its nature, or magnitude, or by reason of the question of law involved to be heard and determined by the Supreme Court, he may make an order, remitting the action or matter to the Supreme Court."
In Trimble v Piggott (1995) 14 WAR 329, the issue was whether a District Court Judge had jurisdiction to remit a matter to the Supreme Court where the District Court Judge otherwise did not have jurisdiction to deal with a claim for equitable relief by way of a constructive trust or otherwise.
At p 330, Malcolm CJ said:
"The argument which was put below was that if the District Court had no jurisdiction to deal with the claim for relief, it had no jurisdiction to remit the matter to the Supreme Court and that the action should have been struck out or dismissed in the District Court."
At p 331, Malcolm CJ said with respect to s 76, s 77 and s 78 of the DC Act that:
"It is quite clear that the scheme of the legislation is to avoid proceedings being brought on and dismissed in one court and then having to be brought again in another court with the consequent costs involved by following that procedure.
In my view it was entirely appropriate for the judge in this case, when faced with an action which contained a prayer for equitable relief in the form of a constructive trust or any other relief of a similar nature, to determine that the case was one the nature of which was such that it ought to have been heard in the Supreme Court, rather than accede to the strike‑out application.
In those circumstances where he may not have had jurisdiction it was appropriate to take the step of remitting the matter to the Supreme Court."
Kennedy and Pidgeon JJ agreed. Further, Pidgeon J added at p 332:
"Section 65 does require a District Court Judge to strike‑out a matter where there is no jurisdiction, but I consider that that section must be read with ss 52 and 77, and it has always been read that way, that if it is a type of action that is triable in the Supreme Court then under s 77 the power ought to be exercised to remit it to the Supreme Court."
Further, in Chantec Pty Ltd v Comgroup Supplies Pty Ltd [2001] WASCA 238 Anderson J stated at [5] thereof that:
I can see no reason to place any narrow construction on [s 77 of the DC Act]. There are no policy reasons to do so, in my opinion. It is in the interests of the efficient disposal of actions that there should be a wide power to remit to avoid the worst consequences of a wrong choice of jurisdiction."
Anderson J held that the Court had power to remit and determined, that, the Court should not, on discretionary grounds, not remit the matter, there being no prejudice to the opposing party in that case. McKechnie and Roberts‑Smith JJ agreed with Anderson J. McKechnie J at [12] noted that in Trimble v Piggott, Malcolm CJ had said at p 331:
"The procedures contemplated are administratively simple and are designed to avoid any unnecessary costs involved in the remitting or transferring of actions between the respective courts."
McKechnie J went on at [18] to comment that:
"The purpose of s 77 was to provide a quick and easy mechanism to transfer cases, not to provide a technical and potentially unjust hurdle in the way of a plaintiff proving its loss. It is not suggested in this case that the plaintiff has made a mistake but even if it had, that would not necessarily provide a reason to refuse the remitter."
There can be no prejudice to the defendants in this case by me remitting this originating summons to the Supreme Court. To not do so would be contrary to the authorities referred to above.
For these reasons, I have determined that I do not have jurisdiction to grant leave as required by the plaintiffs' application under s 15(2) of the ASC Act, but, pursuant to s 77 of the DC Act, I will remit this originating summons to the Supreme Court for its proper determination by that Court.
Counsel for the plaintiffs suggested that if I came to the view that this matter should be remitted, then, it would be inappropriate for me to comment on the merits of the originating summons. With that, I respectfully agree.