Ho v Loneragan

[2011] WADC 133

HO -v- LONERAGAN [2011] WADC 133

Last Update:  01/09/2011

HO -v- LONERAGAN [2011] WADC 133
Pending Appeal	Link to Appeal:
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WADC 133
Case No:	APP:67/2010	Heard:	12 AUGUST 2011
Coram:	CURTHOYS DCJ	Delivered:	29/08/2011
Location:	PERTH	Supplementary Decision:
No of Pages:	9	Judgment Part:	1 of 1
Result:	Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	DENNIS CHEELIM HO PHILIP KUNG JIN TIANG LARRY LONERAGAN
Catchwords:	Appeal from Magistrates Court Appeal out of time No power to extend time
Legislation:	District Court Rules 2005 r 51, r 51A Magistrates Court (Civil Proceedings) Act 2004 s 40(3)
Case References:	Grossetti v Grossetti [2011] WADC 78

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : HO -v- LONERAGAN [2011] WADC 133 CORAM : CURTHOYS DCJ HEARD : 12 AUGUST 2011 DELIVERED : 29 AUGUST 2011 FILE NO/S : APP 67 of 2010 MATTER : IN THE MATTER of the District Court (Appeal) Rules BETWEEN : DENNIS CHEELIM HO

First Appellant

PHILIP KUNG JIN TIANG
Second Appellant

AND

LARRY LONERAGAN
Respondent

Catchwords:

Appeal from Magistrates Court - Appeal out of time - No power to extend time

Legislation:

District Court Rules 2005 r 51, r 51A
Magistrates Court (Civil Proceedings) Act 2004 s 40(3)

(Page 2)

Result:

Appeal dismissed

Representation:

Counsel:

First Appellant : Mr A Willinge
Second Appellant : Mr A Willinge
Respondent : Ms K Levy

Solicitors:

First Appellant : Austasia Legal Pty Ltd
Second Appellant : Austasia Legal Pty Ltd
Respondent : Fiocco's Lawyers

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

Grossetti v Grossetti [2011] WADC 78

(Page 3)

1 CURTHOYS DCJ: This is an appeal by Ho and Tiang (the Buyer) against a finding that they were in default under a contract for the purchase of a pharmacy from Loneragan (the Seller). The learned magistrate found that the Buyer was in default and ordered interest to be paid to the Seller under cl 17.1 of the contract.

2 The appeal was heard on 12 August 2011. I received fresh written submissions from the appellants on 19 August 2011. A preliminary point has arisen as to the jurisdiction of this court to entertain the appeal.

3 The judgment of her Honour Magistrate Boon was handed down on 10 August 2010.

4 The notice of appeal was filed on 3 September 2010.

5 Section 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 provides:

The appeal must -

(a) be commenced within 21 days after the date of judgment; and

(b) be conducted in accordance with rules of court made by the District Court.

6 The respondent argued that the appeal is out of time.

7 The appellants' solicitors did not receive the judgment until 17 August 2010 (see affidavit of Siobhan Elizabeth Drake-Brockman sworn 3 September 2010). The appellants argued that the appeal is in time on the basis that s 40(3) should be read so that time runs from the service, or notification, of the judgment to both parties. Further they argued that by reason of the Civil Judgment Enforcement Act 2004 (WA) the judgment given on 12 August 2010 since it was posted on 10 August 2010.

8 The express words of s 40(3) do not permit the interpretation advanced by the appellants to be accepted. If the legislature intended that time was to run from the service, or notification, of the judgment it could easily have provided for that in s 40. The section does not so provide. The Civil Judgments Enforcement Act does not alter the position. I find that the notice of appeal was served out of time.

(Page 4)

Delivering of judgment

9 The appellants advanced an alternative argument that because the magistrate did not appoint a time and place to give judgment there was no judgment. If there is so, then there is no judgment to be appealed against and the appeal is incompetent.

Does the court have the power to extend time?

10 There has been a conflict in the judgments of this court as to whether or not there is a power to extend time. The most recent decision is that of his Honour Judge Scott in Grossetti v Grossetti [2011] WADC 78. His Honour's reasoning is ([37] – [55]):

Section 40(3) of the MCCP Act provides:
40(3) The appeal must -
(a) be commenced within 21 days after the date of judgment; and

(b) be conducted in accordance with the rules of court made by the District Court.

Rule 51 of the District Court Rules 2005 (DCR) provides:
51(1) An appeal to the Court against an appealable decision must be commenced by filing a notice of appeal at the registry nearest to where the appealable decision was given.

(4) A notice of appeal must be filed and served within 21 days after the date of the appealable decision.

There is no provision in the MCCP Act or the District Court of Western Australia Act 1969 (District Court Act) or the DCR for an extension of the time limited for filing and serving a notice of appeal from a decision in the Magistrates Court.

Section 87 of the District Court Act provides:

87(1) Subject to this Act, the practice and procedure of the Court shall be governed by the rules of court, and until provision is made by rules of court or where no special provision is contained in the rules of court, the rules of court of the Supreme Court for the time being in force, so far as applicable, apply to the Court.
Order 3, r 5 of the Rules of theSupreme Court 1971 (RSC) provides:

(Page 5)

(1) The court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules or by any judgment, order or direction to do any act in any proceedings.

(2) The court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

Rule 6 of the DCR provides, relevantly:
(1) The RSC apply to and in respect of any case in the court ….. and

…

(3) If there is a conflict or inconsistency between these rules and the RSC, these rules prevail.

The term 'case' is defined in r 3 of the DCR as 'any proceedings in a court involving or in connection with a court's civil or appellate jurisdiction'.

The rules regulating appeals to this court are contained in pt 6 of the DCR.

In the event that the provisions of the DCR included or incorporated a rule empowering this court to extend the time limit within which an act was required to be done, then notwithstanding the mandatory provisions of s 40(3)(a) of the MCCP Act, a rule in those terms would be likely to empower the court to exercise a discretion as to whether any time limit might be extended (Electric Light & Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554, 599.)

The question then is whether the provisions of s 87 of the District Court Act and/or r 6 of DCR are to be construed as incorporating in the DCR O 3, r 5 of the RSC.

I do not consider that either of those provisions have that effect.

The rules of this court regulate the appellate procedure and do so specifically. The provisions of r 51(4) are mandatory in their plain meaning. To that end, it is not a case where no 'special provision' is contained in the rules of this court (s 87 of the District Court Act). There is a specific provision for the time limited for appeal.

I have not been referred to, nor am I aware of, any Court of Appeal decision with respect to the question whether this court has the power to grant an extension of time within which a party may institute an appeal which is governed by s 40(3) of the MCCP Act and r 51(4) of the DCR.

There has been some conflict between the decisions of judges in this court on this question. To that end I refer to Wise & Anor v Proprietors of

(Page 6)

Strata Plan 21513 [2008] WADC 80 (Keen DCJ), Lau v Chua [2009] WADC 172 (Eaton DCJ), McKeon v Knapton [2009] WADC 170 (Sweeney DCJ), Wilson v Westpac Banking Corporation [2011] WADC 13 (Braddock DCJ), Defendi v Chartstar Pty Ltd (t/as Coletti Refrigeration and Air Conditioning [2011] WADC 42 (Wager DCJ), Jackson v Chrisp [2011] WADC 38 (Wager DCJ) and Seah v Ousby [2011] WADC 54 (Wager DCJ).

In the matters of Wise and Lau, their Honours took the view that this court did have a discretion to extend time. Their Honours, Sweeney, Braddock and Wager, DCJ have taken the opposing view.

The right of appeal is created by s 64(2) of the RO Act which designates pt 7 of the MCCP Act as the framework within which the appeal must be instituted and conducted.

I am of the view that the decisions of their Honours, Sweeney, Braddock and Wager DCJ are to be preferred. Section 40(3)(a) of the MCCP Act is in mandatory terms, as is r 51(4) of the DCR.

There is support for that view in the Court of Appeal in New South Wales in Patterson and James v Public Service Board of NSW (1984) 1 NSWLR 237, although in that case it must be said that the time limit for appealing in the relevant Act (21 days) and the Supreme Court Rules which were urged to have application (28 days) were different. Nonetheless, the rationale is compelling.

It is in my view impossible to escape the plain and literal meaning of the provisions of the MCCP Act and the DCR to which I have referred. I consider that this court does not have the power to extend time.

11 I accept his Honour Judge Scott's reasoning.

12 Since Grossetti the District Court Rules 2005 have been amended (Gazette 17 June 2011 page 2162). The appellants rely on those amendments in arguing that Grossetti no longer applies.

13 The amendments added r 51A and amended r 51.

14 Rule 51A provides

Unless another written law provides otherwise, an appeal to the Court against an appealable decision must be commenced within 21 days after the date of the decision.

[Rule 51A inserted in Gazette 17 June 2011 page 2162.]

15 Rule 51A only emphasises the need to comply with the 21 day time limit unless a written law sets a different time limit or permits an extension.

(Page 7)

16 Rule 51 now provides:

Appeal, commencement of

(1) To -

(a) commence an appeal to the Court against an appealable decision; or

(b) apply for an extension of time within which to commence such an appeal,

the appellant must file these documents -
(c) a Form 6 (Appeal notice) that sets out the grounds for the appeal in accordance with subrule (3);

(d) any document required by subrule (2).

(2) If Form 6 says an extension of time within which to commence the appeal is needed, the form must be filed with an affidavit by the applicant or the applicant's lawyer or both explaining why the appeal was not commenced within time.

(3) The grounds of appeal in a notice of appeal must not merely allege that an appealable decision is against the weight of the evidence or that it is wrong in law, they must specify the particulars relied on to demonstrate that the decision is against the weight of the evidence and the specific reasons why it is wrong in law.

(4) An appeal notice must be served on the respondent either personally or, if the respondent is in a prison, by sending it to the superintendent of the prison by ordinary pre-paid post.

(5) If an appeal is made under the Criminal Injuries Compensation Act 2003 Part 7 -

(a) the notice of appeal, and any other document filed in the appeal must be served on -
(i) the Chief Assessor of Criminal Injuries Compensation appointed under that Act; and

(ii) the State Solicitor's Office, on behalf of the chief executive officer of the department of the Public Service that principally assists the Minister in the administration of that Act;

and

(b) service of the documents may be effected by ordinary prepaid post.

(Page 8)

(6) When an appeal notice is served on a respondent, it must have attached to it a Form 8 (Notice of respondent's intention).

(7) As soon as practicable after serving the respondent the appellant must file a Form 7 (Service certificate).

[Rule 51 amended in Gazette 10 Dec 2010 p 6266; 17 Jun 2011 p 2162-3.]

17 Form 6 is attached at the end of the judgment as an annexure.

18 As I understand the appellants' argument it is that that r 51(1)(b) and that part of Form 6 which reads 'Is an extension of time needed? Yes/No' implies that there is a power to extend time.

19 However, the explanation for r 51(1)(b) and that part of Form 6 is to be found in s 55(3) and s 55(4) of the Criminal Injuries Compensation Act which provide:

(3) The appeal must be commenced within 21 days after the date of the decision.

(4) If it is just to do so, the District Court may allow an appeal to be commenced after the 21 days, and may do so even if the period has expired.

20 The reference to leave found in District Court Rules r 51(1)(b) and Form 6 is explained by the power to extend time under the Criminal Injuries Compensation Act. The implication contended for by the appellants cannot be drawn.

21 There is not anything in the amendments to r 51 to persuade me that the amendments were intended to overturn the effect of Grossetti.

22 Further, the absence of a provision such as s 55(4) of the Criminal Injuries Compensation Act from s 40 of the Magistrates Act only reinforces the conclusion that there is no power to extend time.

23 Having decided the leave point against the appellants I do not think it useful to determine the merits of the appeal.

24 The orders I propose to make are:

1. The appeal is dismissed, and

2. The appellants pay the respondent's costs of the appeal to be taxed.

(Page 9)

Annexure

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