GSA Industries (Aust) Pty Ltd v Tully

[1994] QCA 178

IN THE COURT OF APPEAL	[1994] QCA 178
SUPREME COURT BRISBANE

Appeal No. 214 of 1993.

Brisbane
[GSA Industries v. Tully]

BETWEEN:

G.S.A. INDUSTRIES (AUST) PTY LTD

trading as ACTROL PARTS

Appellant

AND:

PATRICK LAWRENCE TULLY

Respondent

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__

Fitzgerald P.
McPherson J.A.

Pincus J.A.

_______________________________________________________________

__

Judgment delivered 30/05/1994

Judgment of the Court

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ANSWERS AND ORDERS AS FOLLOWS:

1. Question:Should s. 222(2)(a)(i) of the Justices Act (1886) be interpreted so as to require an applicant for enlargement of time to establish that he or she was unable to serve notice within time before the discretion to extend time can be said to exist?

Answer: Yes.

2.   Question:Should the provision be interpreted so as to require an applicant to establish that the inability was due to no fault of his or her own before the discretion to enlarge can be said to exist?

Answer: Yes.

3.   Question:Should the provision be interpreted so as to enable an applicant to argue successfully that the fault of his or her solicitors in failing to serve a notice of appeal was not "a fault of his or her own"?

No answer given.

4.   The order of the learned primary judge of 21 May 1993 dismissing an application for enlargement of time is affirmed.

5.   The appellant shall pay the respondent's costs of and incidental to these proceedings to be taxed.

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CATCHWORDS:	Appeal and New Trial - case stated - interpretation of s. 222(2)(a)(i)Justices Act - appeal from Magistrates Court to Judge of District Court - notice of appeal filed but not served within 28 day time period - whether time to serve should be enlarged - meaning of "unable".
Leeder v. Mayor etc. of the Town of Ballarat East [1908] V.L.R. 214. Carrington v. McColl [1948] V.L.R. 304.
Counsel:	J D McKenna for the appellant. M B Lehane for the respondent.
Solicitors:	Clayton Utz for the appellant. The Crown Solicitor for the respondent.
Hearing Date:	23 May 1994.

IN THE COURT OF APPEAL SUPREME COURT BRISBANE

Appeal No. 214 of 1993.

Brisbane

[GSA Industries v. Tully]

Before	Fitzgerald P. McPherson J.A. Pincus J.A.
BETWEEN:

G.S.A. INDUSTRIES (AUST) PTY LTD

trading as ACTROL PARTS

Appellant

AND:

PATRICK LAWRENCE TULLY

Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 30/05/1994

This matter comes before the Court by way of a special
case stated by the District Court for our opinion. On 15
January 1993 the appellant was convicted in the Magistrates
Court of an offence under the Trade Measurement Act 1990.
Since the Magistrate's order fell within s. 222(1) of the
Justices Act 1986 an appeal lay to a judge of District Courts.

A notice of appeal was filed on 5 February 1993, but was not served until 29 March 1993. The matter was dealt with in the District Court on the basis that it was the 28 day time limit mentioned in s. 222(2)(a)(i) which governed the matter, so that we must assume that there was a fine, penalty or forfeiture exceeding the sum or value of $10.00, within the meaning of s. 222(1A)(a). Section 222(2) reads, so far as relevant, as follows:

"Every such appeal shall be made under and subject to
the following rules and conditions -

(a)  the appellant shall -

(i) within 28 days after the decision or within 7 days after obtaining the leave of a Judge to appeal against the decision, as the case may be, serve on the person concerned in upholding such decision and on the clerk of the court at the place where the decision was given a notice of appeal in the prescribed form setting forth the grounds of the appeal and stating the place where the appellant desires the appeal to be heard and determined in accordance with the District Courts (Venue of Appeals) Act 1988 (however, if the appellant is unable through no fault of his or her own to serve notice as aforesaid the appellant may apply to a Judge for an order enlarging the time for service thereof and, if necessary, for an order for substituted service thereof, and such Judge may make such order or orders as the Judge thinks fit)".

It will be noted that we have set the provision out in the form of the latest reprint, amended under the Reprints Act 1992.

Being, on the assumption mentioned, well out of time to serve its notice of appeal as required by the provision we have quoted, the appellant applied to the District Court for an order enlarging the time for such service; that application was dismissed. In the course of his reasons the District Court judge remarked:

"An analysis of the words of the section which I have to consider would seem to me to involve two findings before the proviso can be applied. First, that the appellant was unable to serve the notice within time. And second, that such inability was due to no fault

of its own. Submissions concentrated on the second point. However, it is my view that in the present circumstances the appellant is unable to establish the first matter. That is, that it was unable to serve the notice within time for any cogent reason.

It is clear that Mr Tully was always contactable for service during the relevant time and, indeed, no basis for inability to serve has been laid.

It follows that on this short point I must find that the threshold question in the proviso cannot be established in favour of the appellant and I have no discretion to enlarge the time"

The judge went on to say that it was unnecessary for him to consider whether the appellant had shown that any relevant inability was due to no fault of its own.

The judge was subsequently asked by the appellant to state a special case under s. 227 of the Justices Act 1986, which reads as follows:

"The Judge may state in the form of a special case for the opinion of Court of Appeal any question or questions of law arising upon the facts of the case and his or her judgment shall be affirmed amended altered or reversed and such order made as to costs as the Court of Appeal upon the hearing of such special case shall direct."

The application was resisted, but his Honour acceded to it and stated a case, the body of which is as follows:

"1. DETERMINATION

On the 21st May, 1993 I dismissed an application for extension of time within which to serve a Notice of Appeal pursuant to section 222(2)(i)(a) of the Justices Act 1886. The facts upon which my determination was based were as follows:-

(i)        The parties were parties to proceedings in the Magistrates Court pursuant to a complaint made under the Trade Measurements Legislation.

(ii)       The relevant decision was delivered by a Stipendiary Magistrate on the 15th January, 1993.

(iii)A Notice of Appeal against that decision was filed with the Court on 5th February, 1993 by solicitors for the appellant.

(iv)	The person concerned in upholding the decision for the purposes of section 222(2)(i)(a) of the Justices Act 1886 was Patrick Lawrence Tully a Trade Measurement Inspector of the Department of Consumer Affairs.
(v)	At all material times Mr Tully was listed in the telephone book in Cairns and worked from an office in the Cairns Courthouse and further resided in Cairns. At all material times Mr Tully was readily available for service upon him.
(vi)	The appellant company gave instructions to its solicitor to institute an appeal and at all material times left the institution of such appeal to its solicitors.

(vii)Due to an unfortunate mix-up in the solicitors' office, sufficient steps were not taken to ascertain the address of, and effect service upon, Mr Tully within the time limited by section 222(2)(i)(a) of the Justices Act 1886.

(viii) The first time Mr Tully became aware of an appeal was on Friday, 19th March, 1993. Service was made upon him on the 29th March, 1993.

2. GROUND OF DETERMINATION
I determined the application for leave to extend
the time in which to serve Notice of Appeal upon
Mr Tully on the basis that the appellant was
unable to establish that it was unable through
no fault of its own to serve Notice of Appeal
upon Mr Tully within the time limited by section
222(2)(i)(a) of the Justice Act 1886.

3.    QUESTIONS OF LAW ARISING UPON THE FACTS OF THE

CASE

1.	Should the proviso to section 222(2)(i)(a) of the Justices Act 1886 be interpreted so as to require an applicant for an extension of time to establish first that he was unable to serve the Notice within time before the discretion to extend time can be said to exist?
2.	Should the proviso be interpreted so as to require an applicant thereafter to establish that the inability was due to no fault of its own before the discretion to enlarge can be said to exist?
3.	Should the proviso be interpreted so as to enable an applicant to argue successfully that the fault of its solicitors failing to serve a Notice of Appeal was not 'fault of its own'?"

Mr McKenna who argued the case for the appellant made two submissions relevant to the first and second questions in the special case. First, he argued in effect that the word "is" in the expression "if the appellant is unable" refers to the time at which the application for an enlargement is made. Hence, Mr McKenna said, if the application is made after the time for service has expired the condition as to inability must necessarily be satisfied; that is so because the appellant, being out of time, is then unable to serve notice "as aforesaid", which means among other things within due time. We reject this contention as it is clear that the condition of inability to serve refers to inability during and not after that time for service which the statute prescribes; after the word "is" one implies "at the relevant time" and it would be absurd to treat the condition as satisfied merely because the appellant applies for enlargement after the time for service of notice has expired. We would add that the circumstance that an appellant is still unable to serve, at the time the application for enlargement comes before the court, may justify an order for substituted service.

Secondly, Mr McKenna contended that the requirement that inability to serve in time "through no fault of his or her own" be shown is directory only, and some reference was made to the possibility of waiver of the appellant's obligations. No question of waiver of due service arises here and we say nothing on that subject. Section 222(2)(a)(i) in terms attaches, to the right to apply for an order enlarging time, a condition as to absence of fault, and by necessary implication applies it to the judge's power to enlarge time. If the condition is unsatisfied, the judge cannot enlarge the time.

As to the second point, we would add that authority is to be found supporting a liberal reading of the requirement of inability to serve, in similar contexts: Leeder v. The Mayor etc. of the Town of Ballarat East [1908] V.L.R. 214 at 218, 219, 223, 226; Carrington v. McColl [1948] V.L.R. 304 at 307.

The question: how much difficulty in achieving service is
necessary to establish inability to serve? does not arise here.
Although the special case does not express the conclusion with
respect to inability which is set out in the judge's reasons on
the application for enlargement of time, the matter was argued

before us on the basis that inability to serve during the 28

day period was not established.

The conclusions which we have stated are sufficient to determine the matter; they show that the District Court judge was right to dismiss the application to enlarge time to serve the notice of appeal.

Question no. 3, dealing with the relevance of the solicitor's fault, was not an issue with which the judge dealt when he dismissed the application for enlargement. It was unnecessary for his Honour to do so, because of his conclusion on the question of inability. The relevance of the solicitor's fault is an academic point here. Apart from that, the relevant facts are sparsely stated; the contacts which the appellant had with its solicitor concerning the appeal and the reason for failure of service are not set out. It is of course conceivable that a client might share the blame for the solicitor's failure to serve the notice of appeal. In the circumstances we do not think it right to attempt to frame an answer to question 3, which raises the relevance of the solicitor's fault in an abstract way and cannot affect the outcome of the proceedings.

Under s. 227 this Court has power to affirm the judgment below and that will be done. The answers and orders will be as follows:

1. Question: Should s. 222(2)(a)(i) of the Justices Act (1886) be interpreted so as to require an applicant for enlargement of time to establish that he or she was unable to serve notice within time before the discretion to extend time can be said to exist?

Answer: Yes.

2.   Question:Should the provision be interpreted so as to require an applicant to establish that the inability was due to no fault of his or her own before the discretion to enlarge can be said to exist?

Answer: Yes.

3.   Question:Should the provision be interpreted so as to enable an applicant to argue successfully that the fault of his or her solicitors in failing to serve a notice of appeal was not "a fault of his or her own"?

No answer given.

4.    The order of the learned primary judge of 21 May 1993 dismissing an application for enlargement of time is affirmed.

5.    The appellant shall pay the respondent's costs of and incidental to these proceedings to be taxed.