JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DEFENDI -v- CHARTSTAR PTY LTD (t/as COLETTI REFRIGERATION AND AIR CONDITIONING) [2011] WADC 42
CORAM: WAGER DCJ
HEARD: 2 MARCH 2011
DELIVERED : 23 MARCH 2011
FILE NO/S: APP 55 of 2010
BETWEEN: SILVANO DEFENDI
Appellant
AND
CHARTSTAR PTY LTD (t/as COLETTI REFRIGERATION AND AIR CONDITIONING)
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE PACKINGTON
Catchwords:
Minor case claim - Appeal from Magistrates Court - Out of time - Mandatory time limit - No power to extend time - No denial of natural justice
Legislation:
District Court Rules 2005, r 51(4)
Magistrates Court (Civil Proceedings) Act 2004, s 13, s 32, s 40
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: Mr J T London
Respondent: Mr M S Crawford
Solicitors:
Appellant: McDonald Rudder
Respondent: Arns & Associates
Case(s) referred to in judgment(s):
Cameron v Cole (1944) 68 CLR 571
McKeon v Knapton [2009] WADC 170
Stead v State Government Insurance Commission (1986) 161 CLR 141
Wilson and Westpac Banking Corporation [2011] WADC 13
WAGER DCJ: By notice of appeal filed on 29 July 2010, the appellant Mr Defendi appeals against the decision of his Honour Magistrate Packington dated 5 July 2010 dismissing Mr Defendi's minor case matter brought pursuant to the Magistrates Court (Civil Proceedings) Act 2004 (the Act). Section 40 of the Act provides that an appeal from the Magistrates Court to the District Court must be commenced within 21 days after the date of judgment. The District Court received the notice of appeal on 29 July 2010, being three days beyond the 21 day period. The first issue to be determined is whether I have the discretion to extend the time in which to receive the appeal in this matter, or alternatively the discretion to alter the date shown on the notice of appeal to place it within the 21 day period.
In his affidavit sworn 15 September 2010 Mr Defendi deposed that the reason for the late filing of the appeal was that the copy of the magistrate's decision that he received was not dated and he therefore completed his notice of appeal with the date omitted. The District Court registry would not receive his notice of appeal because it did not contain the date of judgment. Mr Defendi deposed that he made numerous enquiries from 21 July 2010 through until 29 July 2010 with the Magistrates Court in Perth and the Magistrates Court in Midland and with various officers before receiving notification of the correct date of judgment. I accept that the notification came from a letter to Mr Defendi from his Honour Chief Magistrate Heath dated 27 July 2010 apologising that the reasons for the decision were forwarded without the date of decision being recorded. His Honour said:
I understand that the file has been returned to the Midland Court and it would appear that it was in transit when you made your enquiries to…
Continue reading Defendi v Chartstar Pty Ltd
Sign in free to access the full text
- AGLC
- Defendi v Chartstar Pty Ltd [2011] WADC 42
- Case
- [2011] WADC 42
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework governing the appeal process and found that the time limits were prescribed by the principal legislation, specifically the Magistrates Court (Civil Proceedings) Act. The court noted that the time limits were not provided by subordinate legislation, such as the rules of the Supreme Court or the District Court, which may allow for extensions of time. The court also considered the case of Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237, where it was held that a mandatory time limit fixed by Parliament showed an intention contrary to the power to extend time contained within the rules. The court concluded that, as the time limit was fixed by the principal legislation and there was no express provision for the extension of time, there was no right of appeal after the 21-day period had elapsed.
The District Court found that the time limits for filing an appeal from the Magistrates Court were mandatory and could not be extended. The court held that the statutory right of appeal, the placing of the time limit within the primary legislation, and the failure to make any express provision for the extension of time led to the conclusion that there was no right of appeal after the 21-day period had elapsed. The appeal was therefore dismissed for being out of time.
The court's final order was that the appeal be dismissed for being out of time, and there was no power to extend the time for filing the appeal. The court found that the mandatory time limit was prescribed by the principal legislation and that there was no right of appeal after the 21-day period had elapsed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Recently, in the decision of Wilson and Westpac Banking Corporation [2011] WADC 13, Braddock DCJ considered the question of whether, on an appeal from the Magistrates Court that was out of time, the time limits set were mandatory or whether an extension of time could be granted. Her Honour referred to the decision of Sweeney DCJ in McKeon v Knapton [2009] WADC 170 and said [16] – [21]:The Bank relies upon the decision of McKeon v Knapton [2009] WADC 170. In that case, Sweeney DCJ considered the same issue in relation to an appeal from a Magistrates Court decision, arising out of a motor vehicle accident. Sweeney DCJ, having considered and contrasted various other appeal provisions in West Australian jurisdictions, including the Supreme Court (Court of Appeal) Rules 2005, the State Administrative Tribunal Act 2004 and the Criminal Injuries Compensation Act 2003 concluded that there was no power to extend time in relation to an appeal under s 40 of the Magistrates Court (Civil Proceedings) Act. [16]Sweeney DCJ also considered a previous decision of this court in Wise & Anor v The Proprietors of Strata Plan 21513 [2008] WADC 80, in which Keen DCJ came to a contrary conclusion. I am not persuaded by the reasoning of Keen DCJ and respectfully agree with Sweeney DCJ, that the mandatory 21 day time limit is prescribed by the principal legislation. It is not a period provided by subordinate legislation, such as the rules of the Supreme Court or the District Court, authorising the filing of the appeal. The primary legislation both creates the right of appeal and prescribes its operation by time. This is in distinction to the provisions of the other jurisdictions previously referred to, which may contain express power to extend time, for example, the Criminal Appeals Act 2004, s 28(3). Alternatively, the time limits are provided in the subsidiary legislation, for example, the Supreme Court (Court of Appeal) Rules 2005, which provide:Unless another written law expressly provides otherwise, any other appeal to the Court of Appeal must be commenced within 21 days after the decision being appealed. [17]Those rules may be read in conjunction with r 5(4) and O 3 of the Rules of the Supreme Court 1971, which provide for extensions of time.Sweeney DCJ was assisted in her consideration of the issue by the case of Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237, where the right of appeal was found in s 54 of the Government and Related Employees Appeal Tribunal Act 1980, which provided that in s 55(1):An appeal under s 54 shall be made within 21 days after the date of the tribunal's decision on the question of law the subject of the appeal and shall be made in accordance with the Rules of the Supreme Court. [19]Whilst reliance was sought to be placed by the appellants in that case on r 4(1) of the Rules of the Supreme Court of NSW, which provided for extension of time, the Court of Appeal found that Parliament had, by fixing a mandatory time limit, shown an intention contrary to the power to enlarge time contained within the rules and that s 55 of the Act was mandatory. [20]The provision of a statutory right of appeal, the placing of the time limit within the primary legislation, and the failure to make any express provision for the extension of time, in conjunction with that time limit, leads to the conclusion that there is no right of appeal after 21 days have elapsed. [21]