Dear v Cassar

[2003] NSWLC 3

Local Court of New South Wales

CITATION:	Dear v Cassar [2003] NSWLC 3
JURISDICTION:	Civil
PARTIES:	Dolores Dear (Plaintiff) Mathew Cassar (first Defendant) Slaveo Skara (second Defendant & Third Party)
FILE NUMBER:	10491/2002
PLACE OF HEARING:	Downing Centre Local Court Sydney
DATE OF DECISION:	04/12/2002
MAGISTRATE:	Magistrate P S Cloran
CATCHWORDS:	Civil - Arbitration
LEGISLATION CITED:	Arbitration (Civil Actions) Act 1983 Local Courts (Civil Claims) Act 1970 Arbitration (Civil Actions) Regulation 1999
CASES CITED:	Csalar v Circosta (2002) NSWSC 482 In Re Tyler ex Parte Foley (HC unrep 1/6/94)
REPRESENTATION:	Ms Guarnieri for Plaintiff & mentions for first Defendant Mr Gasic for second Defendant
ORDERS:	1. I hold that the court has no jurisdiction to continue with the hearing of this matter.

Reasons for Decision

1 The plaintiff instituted proceedings against the first and second defendants as the drivers of two motor vehicles in an accident on 15th May, 1999. Proceedings were commenced on 13 August, 1999 for a total amount of $4,286.09, and at that time (being prior to 25th September, 2000, the date of commencement of the Courts Legislation Amendment Act 1999) in the General Division of the Court.

2 The matter was heard before an arbitrator on 23rd August, 2001. An application by way of Notice of Motion was made for an extension of time to file an application for a re-hearing on 12 March,.2002, presumably pursuant to Part 4 Rule 2 of the Local Courts (Civil Claims) Rules (the Rules) That motion was granted on 19th April, 2002 when the court granted a re-hearing and purported to set aside the Arbitration Orders. The matter has to be listed for hearing, however, the jurisdictional question raised by the decision of O’Keefe J. in Csalar v. Circosta [2002] NSWSC 482 has been raised and it is necessary for the Court to deal with that jurisdictional issue before setting a hearing date.

3 Section 12 of the Local Courts (Civil Claims) Act relevantly provides

12. Limits of jurisdiction


(1) Subject to this Part, a court sitting in its General Division has jurisdiction to hear and determine actions for the recovery of any debt, demand or damage (whether liquidated or unliquidated) in which the amount claimed is not more than $40,000, whether on a balance of account or after an admitted set-off or otherwise.


(3) Subject to this Part, a court sitting in its Small Claims Division has jurisdiction to hear and determine actions for the recovery of any debt, demand or damage (whether liquidated or unliquidated) in which the amount claimed is not more than $10,000, whether on a balance of account or after an admitted set-off or otherwise.


(5) Nothing in subsection (3) or (4) prevents an action under the subsection from being heard and determined by a court sitting in its General Division.

4 Prior to 25th September, 2000 the jurisdictional limit for matters in the Small Claims Division was $3,000.

5 The Courts Legislation Amendment Act 1999 (my emphasis) Schedule 6 provided as follows:

Schedule 6---Amendment of Local Courts (Civil Claims) Act 1970 No 11


(Section 3)


[1] Section 12 Limits of jurisdiction


Omit "$3,000 (or such greater amount as the rules may prescribe)" from section 12 (3).


Insert instead "$10,000".


[2] Section 12 (4)


Omit "$3,000". Insert instead "$10,000".

6 The Courts Legislation Amendment Act 2000 (my emphasis) Schedule 12 provides relevantly as follows:

Schedule 12---Amendment of Local Courts (Civil Claims) Act 1970 No 11


[2] Schedule 2 Savings and transitional provisions


Insert after Part 5:


Part 6---Provision consequent on enactment of Courts Legislation Amendment Act 1999


1. Increase in jurisdiction of Small Claims Division


The amendments made to section 12 of this Act by the Courts Legislation Amendment Act 1999 do not apply in respect of proceedings commenced before those amendments.


Explanatory note


Item [2] makes it clear that the increase (from $3,000 to $10,000) in the jurisdiction of the Small Claims Division of the Local Court (as made by the Courts Legislation Amendment Act 1999) does not apply in relation to proceedings commenced before the relevant amendment.

7 Section 21H of the Local Courts (Civil Claims) Act provides that the court may order an action before it be referred for determination pursuant to the Arbitration (Civil Actions) Act 1983 by an arbitrator.

8 Sections 18 and 18A of the Arbitrations (Civil Actions) Act 1983 relevantly provide:

Part 3---Rehearings


18. Application for rehearing


(1) A person aggrieved by an award of an arbitrator may apply for a rehearing of the action concerned.


18A. Order for rehearing


(2) An order for rehearing cannot be made if the amount claimed in the action, or the value of the property to which the action relates, does not exceed the amount prescribed by the regulations for the purposes of this section.

9 Clause 5 of the Arbitration (Civil Actions) Regulation 1999 provides

5. Monetary limit below which an action referred to arbitration is not to be reheard


For the purposes of section 18A of the Act, the prescribed amount is the amount equal to the jurisdictional limit of the Small Claims Division of the Local Court (that is, the amount for the time being specified or referred to under section 12 (3) of the Local Courts (Civil Claims) Act 1970).

10 In Csalar v Circosta O'Keefe J was faced with a similar factual situation:

5. At the time the Statement of Claim was filed the jurisdictional limit of the Small Claims Division of the Local Court for actions for the recovery of any debt demand or damage was $3,000 as provided in s.12(3) of the Local Courts (Civil Claims) Act 1970 . An identical limitation applied in respect of actions to recover goods that are detained or to recover the assessed value of such goods (s.12(4)). However, on 25 September 2000 an amendment to s.12 by the Courts Legislation Amendment Act 1999 came into force so as to substitute an amount of $10,000 for the amount of $3,000 in both s 12(3) and s 12(4) .


8. The unsuccessful plaintiff before the arbitrator, the plaintiff in the present action, applied on 4 December 2000 for a re-hearing in accordance with s.18 of the Arbitration (Civil Actions) Act 1983. On 21 December 2000 the Registrar made an order for a re-hearing of the action before the Court on 23 February 2001. The actual re-hearing came before the Local Court for hearing on 7 May 2001. Objection was then taken on behalf of the defendants that the Court had no jurisdiction to deal with the matter since the amount involved was less than the limitation of $10,000 imposed by s.18A(2) of the Arbitrations (Civil Actions) Act 1983 as it then stood.


9. The Magistrate upheld the objection stating that :


"I have come to the view that (the defendants) application is the correct one and that this Court does not have jurisdiction to proceed to re-hearing of this matter."


and:

"I accept … that the relevant amount is in fact the amount of $10,000, which is the jurisdictional limit."


and:

"It seems to me that an application for a re-hearing is an entirely separate action, if you like than the application for or rather than the application hearing. The application was made in December 2000 … which means that the jurisdictional limit at that point was $10,000."

11 I respectfully disagree with the view expressed by the learned magistrate at first instance in that matter “that an application for a re-hearing is an entirely separate action” The correct approach in my view, is that the legislation provides for a hearing by way of arbitration in appropriate circumstances .. s.21H of the Local Courts (Civil Claims) Act, and a party aggrieved by the order of the arbitrator ‘may apply for a re-hearing of the action concerned’ pursuant to the Arbitration (Civil Actions) Act. There is nothing in the terms of the legislation that would persuade me that the application for re-hearing is an “entirely new or separate action”.

12 His Honour went on to say:

10. The matter for determination is whether in the circumstances of the present case the increase to $10,000 in the amount below which an order for re-hearing cannot be made applies or whether the amount below which an order for re-hearing cannot be made is $3,000 as was the situation when the Statement of Claim was filed on 1 November 1999.


STATUTORY PROVISIONS AND ANALYSIS


11. The matter in issue between the parties is to be resolved by determining the intention of the Parliament when enacting the amendment to s 12 of the Local Courts (Civil Claims) Act 1970.

13 At this point I note His Honour did not mention that he was aware of or that he had been referred to Schedule 12 of the Courts Legislation Amendment Act 2000. Further:

12. The approach of the courts to the construction of amending acts is clearly expressed in Maxwell v Murphy (1957) 96 CLR 261 in which Dixon CJ said:

" The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to factual events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to those past events. (my emphasis) But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy, is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise passed and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 ChD 62. ‘No suitor has any vested right in the course of procedure, nor any right to complain if during the litigation the procedure is changed, provided, of course, that no injustice is done (at 69)’.


The distinction is clear enough in principle, and its foundation in justice is apparent. But difficulties have always attended its application. In some cases, they have been due to the discovery in the nature or context of the legislation, or in its subject matter of indications, whether faint and conjectural or strong and persuasive, of a desire to cover situations already existing." (at 267)


13. The determination of the intention of the Parliament is the goal. The approach referred to Maxwell v Murphy (supra) is an aid in reading that goal. If the language of the statute or its policy or its context, subject matter, nature or surroundings point to an intention that an amending provision should operate in respect of facts or events that have already occurred then the general rule referred to above will not apply. Although the court should not be too ready to depart from the general rule, the nature and degree of the injustice that would result from such a departure and the general policy of or underlying the act which has been amended are relevant considerations. Thus, in Doro v Victorian Railways Commissioners (1960) VR 84 it was held that where a long standing limitation on the amount that a claimant could recover under certain legislation was increased by amendment after an action had been commenced, but before its trial, the amended i.e. increased, amount should apply to all cases that were heard after the commencement of the amending act.


14. To a like effect is the decision of the Hight Court in Fisher v Hebburn Ltd (1960) 105 CLR 188. In that case the court considered an amendment to the then Workers Compensation Act which expanded the definition of and entitlements arising from certain incapacity suffered by a worker. Fullagar J said:


"There can be no doubt that the general rule is that an amending enactment – or, for that matter, any enactment – is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement. The rule has been frequently applied to amending statutes relating to workers’ compensation and it has often been held that such amendments apply only in respect of ‘accidents’ or ‘injuries’ occurring after their coming into force: the cases of Moakes v Blackwell Colliery Co Ltd (1925) 2KB 64 and Kraljevich v Lake View and Star Limited (1947) 75 CLR 169 are familiar examples. But there is no rule of law that such statutes should be so construed, and it would not be true to say that a retrospective effect can only be avoided by confining the operation of such a statute to subsequently occurring ‘accidents’ or ‘injuries’. It may truly be said to operate prospectively only although its prospect begins, so to speak, with some event other than accident or injury." (supra at 194)


16. The exercise by the Local Court of its power to refer matters to arbitration under the Arbitration (Civil Actions) Act 1983 is conditioned by s 21H of the Local Courts (Civil Claims) Act 1970. Section 21H(2) of that Act specifies the matters that the court shall have regard to before making an order. Those matters include the giving of directions for the conduct of the proceedings before the arbitrator "that appear best adapted for the just, quick and cheap disposal of the proceedings" (s 21H(2)(c)). Section 21H(3) prescribes the circumstances under which the court is prohibited from referring a matter to arbitration. They include considerations such as whether the action involves complex questions of law or fact (s 21H(3)(b)), whether the hearing of the action is expected to be lengthy (s 21H(3)(c)) and whether cause has been shown in a particular case why the action should not be so referred (s 21H(3)(e)). Thus the actions that are referred to arbitration are the more simple, short and straightforward matters. These are to be dealt with in a way that is best adapted for their just, quick and cheap disposal.


17. These provisions of the Local Courts (Civil Claims) Act 1970 find an echo in s 18A of Arbitration (Civil Actions) Act 1983, which limits rights of appeal in cases of small value (s 18A(2)) and in s10(2) which requires the arbitrator to act on the substantial merits of the case without regard for technicalities or legal forms.


20. The Arbitration (Civil Actions) Act 1983 makes provision for rehearings at the instance of a person aggrieved by an award of an arbitrator. (s 18). Where an application for rehearing of an action is made the court by which the action was referred to the arbitrator or the Registrar of such court "must order a rehearing of the action" provided the application for rehearing is made before the award becomes enforceable as a judgment or order of the court (s.18A(1)). However, the duty to order a rehearing is subject to a prohibition as follows:


"18A


(2) An order for rehearing cannot be made if the amount claimed in the action, or the value of the property to which the action relates, does not exceed the amount prescribed by the regulations for the purposes of this section."


21. Regulation 5 of the Arbitration (Civil Actions) Act 1999 states:


"For the purposes of section 18A of the Act, the prescribed amount is the amount equal to the jurisdictional limit of the Small Claims Division of the Local Court (that is, the amount for the time being specified or referred to under section 12(3) of the Local Courts (Civil Claims) Act 1970."


22. This regulation in my opinion requires the court to look at the jurisdictional limit provided for in s 18(2) at the time when the right conferred by s 18(1) is exercised and the duty imposed by s 18A(1) is fulfilled as a consequence. This, in my opinion, is the effect of the words "for the time being" in regulation 5.


25. As can be seen in paragraph 15 above, ss 12(1) and 12(3) are in almost identical form except for the jurisdictional limit prescribed for the different divisions of the court. Both sub-sections are different in form from the provisions of ss.12(2) and 12(4). Each of such last mentioned sub-sections deals with actions for the recovery of goods that are detained or for the recovery of the assessed value of such goods. Whilst the jurisdictional limits fixed by both those sub-sections are respectively the same as those fixed by s.12(1) and 12(3), the sub-sections dealing with the recovery of detained goods (or their value) include the words "commenced after the commencement of this section". Thus in the provisions of s.12 which deal with goods, as opposed to debt or damages, the legislature has made express provision that the jurisdictional limits fixed by the sub-sections do not apply to actions commenced prior to the coming into force of such sub-sections. The absence of a like provision in both s.12(1) and 12(3) is, in my opinion, significant in relation to the construction of such subsections. (my emphasis).

14 Again it is clear from His Honour’s comment that he was not referred to the 2000 transitional provision. Further:

26. Another provision to which regard should be had in determining the intention of Parliament in amending s 12(3) of the Local Courts (Civil Claims) Act 1970 is s 12(7), which provides that:


"If:


a) this section is amended, or a rule is made, to increase an amount specified in this section, and


(b) an action in which an amount of money is claimed is pending in a court when the amendment or rule takes effect,


the court may, on the application of a plaintiff, make an order altering the amount specified in the claim to an amount not exceeding the relevant amount as increased."


27. The effect of s 12(7) is to indicate that the Parliament intended that any increase in an amount, in this case the amount of $3,000, should be applicable to an action commenced before the amendment, much like what was said by Fullagar J in Fisher v Hebburn Ltd (supra). In my opinion this supports a conclusion that the time at which regard is to be had to the amount referred to in the statute is the time of hearing or of other act in the course of progress of the action, rather than the date of the institution of the action.


28. As indicated above the jurisdictional limits provided for in s 12(3) and (4) of the Local Courts (Civil Claims) Act 1970 were amended by the Courts Legislation Amendment Act 1999 which was proclaimed to commence on 25 September 2000. That amendment was in the following form:


"3. Amendment of Acts


The Acts specified in Schedules 1 – 8 are amended as set out in those schedules.


Schedule 6


[1] Section 12 Limits of jurisdiction


Omit "$3,000 (or such greater amount as the rules may prescribe)" from section 12 (3)


Insert instead "$10,000"


[2] Section 12(4)


Omit "$3,000". Insert instead "$10,000"."


29. Although the construction of the amending Act referred to in paragraph 27 above alters the ambit of the power of the court to order a rehearing and hence has an effect on a party’s right of appeal, which is not a matter of procedure (Worrall v Commercial Banking Company of Sydney Limited (1917) 24 CLR 28), I am nonetheless of opinion that general rule in relation to construction, which is expressed in Maxwell v Murphy (supra), is rebutted by the language of the statutory provisions. Furthermore, in my opinion the policy referred to in paragraphs 18 and 23 above reinforces such a conclusion.


30. The increase in the amount specified in s 12(3) was effected by an act which appears to have been intended to bring the value of money as it was at the time of the enactment of s 12(3) into line with the value of money as at 1999 – a value which had been eroded over the intervening years by inflation. In these circumstances the concept of accrued rights which were averted to on behalf of the plaintiff is not, in my opinion, a consideration which would gainsay the conclusion to which I have come in relation to the time of application of the statutory limitation referred to in that section and in regulation 5.

CONCLUSION


31. For the foregoing reasons, I am of opinion that the result reached by the Magistrate was correct and that at the time the Registrar of the Local Court purported to order a rehearing of the action in question he was debarred from so doing by s 18A(2) of the Arbitration (Civil Actions) Act 1983. As a consequence, in my opinion the relief claimed in the Amended Summons filed in this matter should be refused and such summons should be dismissed.

15 In Re Tyler; ex Parte Foley , HC, 1 June 1994

The doctrine of stare decisis operates so that a court, bound by a previous decision whose ratio decidendi is not discernible, is bound to apply that decision when the circumstances of the instant case are not reasonably distinguishable from those which gave rise to the decision .

16 In his article ‘The Use and Abuse of Precedent’ (1988) 4 Aust. Bar Review 93 at 96 Sir Anthony Mason, the then Chief Justice of the High Court of Australia said, after noting that a court is bound to apply decisions of courts above it in what he describes as the ‘curial hierarchy’:

When we speak in this context of curial hierarchy or hierarchy of courts we refer to courts which are connected through the line of appeal. Both the reason and the sanction for the doctrine of precedent rest in the power of the higher court to correct the decision of the lower court if it fails to observe the doctrine.

17 In an article entitled ‘Refusing to Follow Precedents: Rebellious Lower Courts and the Fading Comity Doctrine’ (1977) 51 ALJ 288 at 294 Lyndel V Prott stated:

conflict between superior and subordinate courts creates a lack of certainty in the law, indeed, according to Lord Hailsham, chaos, and, in legal matters, some degree of certainty is at least as valuable a part of justice as perfection


He concludes:
The balance does seem to be in favour of retaining the hierarchical system though Lord Denning saw this as causing injustice in some individual cases since the expense of an appeal … might well deter a litigant from seeking to have a decision revoked, and thus perpetuate an injustice.

Conclusion

18 I have set out at great length the decision of O’Keefe J. in Csolar v. Circosta. I do so only to make it perfectly clear that his Honour’s decision does not mention the 2000 amendment which clearly states that the increase in the jurisdiction of the Small Claims Division of the Local Court (as made by the Courts Legislation Amendment Act 1999) does not apply in relation to proceedings commenced before the relevant amendment.

19 In dealing with this matter, I can only come to the conclusion that the 2000 amendment, which could be described as “hidden away” and removed from the 1999 amendment (although both pieces of legislation came into force on the same date, 25th September, 2000) was not brought to the attention of His Honour. It appears to me from the general thrust of His Honour’s judgment that it was, what was thought to be the absence of legislation in the terms set out in Schedule 12 to the 2000 amendment, that His Honour concluded that the intention of the legislature was contrary to what was set out in that amendment.

20 The general thrust of His Honour’s judgment is that it was the mistaken belief that there was no provision such as Schedule 12 to the 2000 amendment which led His Honour to find that the intention of the legislature was contrary to that set out in that Schedule.

21 It seems a great pity His Honour’s attention was not drawn to the particular provision. In my view I am not entitled to come to a different conclusion which would have the effect of overruling a decision of the Supreme Court.

22 The issues set out in this matter come before this court regularly. A number of litigants have approached the court, been made aware of His Honour’s decision in Csolar v. Circosta and agreed that no further action can be taken. If I were to hold differently to that of His Honour, it would place other litigants in an unenviable position, not to mention the practitioners who advise them.

23 To hold that the intention of the legislature is clear and that the doctrine of stare decisis has no application where the meaning of a statute is plain and free from ambiguity would be to completely disregard His Honour’s words in paragraph 22 and 27 of the judgement:

24 I have indicated that I do not, with the greatest respect, agree with His Honour’s conclusions and I have set out the reasons. Unfortunately, I have come to the conclusion that this court is bound by the decision of the appellate court and any alteration to the principles espoused in the O’Keefe J’s decision in Csolar v. Circosta must come from a court of similar or higher jurisdiction.

25 In accordance with the ruling of His Honour in Csolar v. Circosta I hold that the court has no jurisdiction to continue with the hearing of this matter.