De Angelis v De Angelis

[2003] VSC 83

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7033 of 2000

PETER MARLON DE ANGELIS	Plaintiff
And
FRANK (FRANCESCO) DE ANGELIS	Defendant

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JUDGE:	MANDIE, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 March 2003
DATE OF JUDGMENT:	7 March 2003
MEDIUM NEUTRAL CITATION:	De Angelis v De Angelis [2003] VSC 83

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STATUTES – time limit for Part IV application under s.99 of the Administration and Probate Act 1958 (Vic) – application of s.44(3) of the Interpretation of Legislation Act 1984 (Vic) where the time for the doing of an act expires on a holiday

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J. Firkin	Galbally & O’Bryan
For the Defendant	Mr P. Ahearne	John Di Santo

HIS HONOUR:

1. This proceeding is a Part IV application, and certain matters are common ground.  It is common ground that the probate of the will of Angelo de Angelis was granted on 30 March 2000.  It is also common ground that the plaintiff, Peter Marlon de Angelis, brought his application under Part IV of the Administration and Probate Act 1958 by filing in the court an originating motion on 2 October 2000. Further, it is common ground that 2 October 2000 was a Monday.

1. Section 99 of the Administration and Probate Act provides that no application shall be heard by the court at the instance of a party claiming the benefit of this Part unless the application is made within six months after the date of the grant of probate of the will, and it is well established, and not disputed by the parties, that an application is made when it is filed with the Prothonotary, as it was in this case on 2 October 2000. Six calendar months after the date of the grant of probate expired on Sunday 1 October 2000, and again I think it is common ground that that is prima facie appropriate measure of the time permitted by s.99. So, unless there is some other provision which can be availed of, the plaintiff was out of time by one day and would need to make an application, as he has done, but which has not yet been heard, for an extension of time, again under s.99 of the Administration and Probate Act. However, it is submitted by counsel for the plaintiff that s.44 of the Interpretation of Legislation Act 1984 is applicable and has the consequence that the time for making the Part IV application was extended to 2 October, and therefore the plaintiff was within time and need not apply for an extension of time. That is the point on which I propose to rule.

1. Section 44(3) of the Interpretation of Legislation Act 1984 provides, so far as relevant, that where the time limited by an Act for the doing of any act or thing expires or falls on a day that is a holiday, the time so limited shall extend to, and the actual thing may be done, on the day next following that is not a holiday. Sub-s.(4) provides that a holiday means, among other things, a Saturday or Sunday. It is not disputed that those provisions were operative when this application was made on 2 October 2000. What is in dispute is whether those provisions are applicable to the period of six months under s.99.

1. Mr Ahearne, who appears as counsel for the defendant, submitted that the court’s jurisdiction was limited by s.99 and that the provisions of the Interpretation of Legislation Act were inapplicable, as I understand his submission, because the section provides that no application shall be heard unless an application is made within six months, therefore the court’s jurisdiction is limited and cannot be extended.  Mr Ahearne accepted that there were no direct authorities on this point.  He referred to some earlier cases.  McPherson v. Lawless [1960] V.R. 363 dealt with the time for obtaining an order to review an order of a Court of Petty Sessions under s.155 of the Justices Act 1958.  The court there decided that where the time expired on a Sunday or other day on which the court was not sitting, there was nothing in the section which could give rise to the interpretation that the period was extended to the next court sitting day.  The provisions are different, and no question of a provision such as that which is now before me in the Interpretation of Legislation Act was relevant in that case.  I am not really assisted by it.  It was applied by the Full Court in Morton v. Hampson [1962] V.R. 364 to the time limit for an appeal under s.74(2)(a) of the County Court Act 1958, but again there was no question there of the Interpretation of Legislation Act provisions.  The only other case to which I was referred by Mr Ahearne was the case of Lord v. Australian Safeway Stores Pty Ltd [1996] 1 V.R. 614, but that case seems to deal with questions relating to applications for an extension of the limitation period and does not really bear, so far as I can ascertain, on the issues which I presently have to decide.

1. In my opinion, the period of six months within which an application must be made in order that the court may hear a Part IV application within the meaning of s.99 of the Administration and Probate Act is a “time limited by an Act for the doing of any act or thing”. I think, on a proper construction of both provisions, that is, s.99 of the Administration and Probate Act and s.44 of the Interpretation of Legislation Act, the language of the Interpretation of Legislation Act is applicable. It is clear from s.99 that the period of six months is a time for making an application, and that is made clear by the proviso, which says that the time for making an application may be extended; but, even without looking at that, it seems to me that the primary provision of s.99 which talks about an application being made within six months falls literally within the provisions of s.44(3) of the Interpretation of Legislation Act as a time limited by an Act for the doing of any act or thing. Furthermore, it is a time which, in this case, has expired on a holiday within the meaning of the Act, namely, a Sunday. I see no reason, as a matter of the plain, natural and reasonable construction of the words, and I see no reason in policy or in the particular intention of s.99, that would exclude the application of the general provisions of the Interpretation of Legislation Act in s.44(3). The fact that the court’s jurisdiction to hear a Part IV application is limited to those applications made within six months does not, it seems to me, affect the application of one provision to the other. It seems to me that this is just the kind of situation which the section was aimed at. Section 44(3) is a remedial provision; it is there to protect people who are affected by statutory time limits which expire on holidays, including weekends; it is there for the benefit of people who are affected by time limits, and I do not think the fact that s.99 is framed in terms that prevent the court from hearing an application not made within a specified period has any deleterious consequences for this interpretation or for the application of s.44(3).

1. I therefore conclude that the application in this proceeding was brought within time and that no application for an extension of time is necessary.  Had it been necessary to determine that, I would have had to consider not only whether an extension of time should be granted, and one would have thought there would be, without having heard the arguments about it, fairly strong grounds for extending the period by one day when the actual proceeding has reached the stage that it has:  all the affidavits have been filed, orders have been made, and in fact I think at one stage there was even a trial date which was vacated, so it is hardly a matter which is being dealt with at the beginning.  But I do not need to decide that, and there are other matters which might affect the court’s discretion, such as the question as to whether there has been a final distribution of the estate, or whether there has been a final distribution of some parts of the estate, but in the circumstances I do not need to determine any of those matters.  I will simply rule that the application is within time. 

The summons of the defendant of 28 February 2003, which seeks a declaration that the plaintiff’s application may not be heard, is dismissed.  

The application by the plaintiff for an extension of time dated 6 March is dismissed but not on the merits, simply dismissed for the reason that I do not think it is necessary.

(Discussion ensued re costs.)

HIS HONOUR:  I will reserve costs to the trial judge.

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