Les Walkden Enterprises Ltd v Menzie

[2001] TASSC 18

[2001] TASSC 18

CITATION:              Les Walkden Enterprises Ltd v Menzie [2001] TASSC 18

PARTIES:  LES WALKDEN ENTERPRISES PTY LTD

ACN 076 400 493

T/AS LES WALKDEN TIMBER HARVESTING
  v

MENZIE, Mark James

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  FCA94/2000
DELIVERED ON:  6 March 2001
DELIVERED AT:  Hobart
HEARING DATES:  19 February 2001
JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure - Tasmania - Jurisdiction - Generally - Single judge - No power to strike out notice of appeal for non-compliance with Supreme Court Rules 2000, r657(4).

Aust Dig Procedure [265]

REPRESENTATION:

Counsel:
           Appellant:  D J Gunson
           Respondent:  K E Read
Solicitors:
           Appellant:  Gunson Pickard & Hann
           Respondent:  Watling Roche Lawyers

Judgment Number:  [2001] TASSC 18
Number of Paragraphs:  13

Serial No 18/2001
File No FCA94/2000

LES WALKDEN ENTERPRISES PTY LTD ACN 076 400 493
T/A WALKDEN TIMBER HARVESTING v MARK JAMES MENZIE

REASONS FOR JUDGMENT  SLICER J

6 March 2001

1. The respondent succeeded in an action against the appellant in his claim for damages for breach of duty owed to him as an employee. On 30 October, the Court ordered ([2000] TASSC 150) that:

"There will be judgment for the plaintiff against the defendant for damages to be assessed, such damages to be reduced by 33 per cent."

A further order was made on 9 November 2000 reserving the costs application to the trial judge conducting the assessment hearing.

1. On 14 November 2000, the appellant filed a notice of appeal seeking review of the decision on the ground that:

"… the Learned Trial Judge erred in fact and in law in finding that the Defendant was in breach of the duty of care owed by it both at common law and by statute to the Plaintiff."

The appeal was filed within the time permitted by the Supreme Court Rules, 2000 "(the Rules).

1. On 8 January, the respondent filed a notice of cross appeal, a step which was not within the time permitted by the Rules.  The notice sought an order that:

"… part of His Honour's judgment be set aside and judgment be entered for the Respondent for damages to be assessed without reduction for contributory negligence."

1. On 16 January 2001, the solicitors for the appellant wrote to the Registrar of the Court requesting an appointment for the settlement of the appeal book and setting out a list of documents which were proposed to be included in the appeal book.

1. On 5 January, the respondent's solicitors filed an interlocutory application (served on 17 January) seeking orders that:

"1 Pursuant to Rule 52 of the Supreme Court Rules 2000 that the time within which the Respondent is entitled to commence a cross appeal in this matter be extended to such time as the Honourable Court deems fit.

2 That the Appellant's Notice of Appeal in this matter be struck out on the basis of failure to comply with Rule 657 (4) (b) of the Supreme Court Rules 2000 in that it does not specifically and concisely state the grounds of the appeal.

3 That the Appellant's appeal be dismissed for want of prosecution pursuant to Rule 665 (4) of the Supreme Court Rules 2000 on the basis that the Appellant has failed to comply with Rule 665 (2) of the Supreme Court Rules 2000."

In effect, the respondent seeks a favourable exercise of discretion whilst seeking to preclude the appellant from having its case determined on merit.

1. The rule governing the form of a valid ground of appeal is r657(4), which states:

"(4)  The notice of appeal is to state ¾  

(a)the part of the judgment that is being appealed; and

(b)specifically and concisely the grounds of appeal; and

(c)what judgment is sought."

1. The appellant contends that only the Full Court is empowered to determine whether a particular formulation of a ground of appeal complies with the rule.  Some of the rules comprised in the Rules, Pt27, Div1, make reference to the powers of a single judge (rr661(2), 665(4), 666(12), 669(2), 670(1)(a), 676, 677), but in all other cases power is afforded only to either the Registrar or the Full Court and those powers are procedural in nature.  Rule 657(4) is equivalent to the former Rules of the Supreme Court, O76, r1(3) and counsel have been unable to ascertain any authority which has considered whether or not a single judge has power to determine compliance.

1. At common law, no provision existed for review by an appellate court.  The creation of a right of appeal is an act which requires legislative authority (Attorney-General v Sillem (1864) 10 HL Cas 704; South Australian Land Mortgage & Agency Co Ltd v R (1922) 30 CLR 523, Isaac J at 553; Bailey v Marinoff (1971) 125 CLR 529; D J L v The Central Authority [2000] HCA 17) which was originally provided in the United Kingdom by the Common Law Procedure Act 1854 and is now relevantly governed by the Supreme Court Civil Procedure Act 1932, PtV. Appeals are to be by way of rehearing (s46) and the power of the Full Court stated in wide terms (ss47, 48 and 49). The Rules are dependent upon the grant of statutory power and it would be anomalous if a single judge could exercise statutory power in such a manner as to defeat the right of a party to have a substantive issue determined by an appellate court. Whether a single judge could stay proceedings until compliance is had in relation to a procedural matter remains a different question, but it is likely that such a power remains with the appellate court. In Burgess v Stafford Hotel Ltd [1990] 3 All ER 222, the English Court of Appeal determined that it has power to strike out a notice of appeal on the ground that it is frivolous, vexatious or an abuse of process. In Burgess, the respondent had made an application to strike out the notice of appeal on the basis that:

"… that the Notice of Appeal … be struck out for failure to set down the Appeal as required by Order 59 r 5 of the Rules of the Supreme Court and as disclosing no reasonable ground of appeal pursuant to Order 59 and Order 18 r 19 of the Rules of the Supreme Court and under the inherent jurisdiction of the Court …".

1. The court determined that the notice was not a pleading and therefore could not technically be struck out under the English Rules, O18, r19, but that it was subject to the inherent power of the Court of Appeal.  A single judge would not possess such a power.  The Tasmanian rule is equivalent to the Rules of the Supreme Court 64.05 (Vic), which states:

"A notice of appeal shall state whether the whole or part only and which part of the decision of the court at first instance is complained of, and shall also state specifically and concisely the grounds of complaint and the judgment or order sought in place of that from which the appeal is brought."

and which has been considered in Motor Accidents Board v Coutts [1984] VR 790 and State of Victoria v Bacon [1998] 4 VR 269. However, the complementary power of the appellate court to permit an amendment (Bacon (supra), Phillips JA at 287), would enable a party to amend a ground which did not comply with the relevant rule. If that power resides with the appellate court, then so does the power to strike out for non-compliance.

1. The contention of the appellant must succeed. A single judge has no power to strike out a notice of appeal on the basis of a claimed non-compliance with the Rules, r657(4).

1. In any event, I would not be prepared to strike out the notice.  Whilst it is couched general terms, it is possible to discern its import by reference to the judgment appealed against.  Consistent with the principles discussed by Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, and repeated in Coutts and Bacon, the notice sufficiently complies with the rule.  Any defect can be cured by the provision of particulars.  However, that remains the province of the Full Court.

1. The question of whether non-compliance with r665(2) permits the dismissal of an appeal either remains one for the Full Court or, accepting that the procedural rule permits intervention because it is preparatory in nature, produces the same answer.  Either a single judge has no power or is afforded a wide discretion.  Assuming the latter, I would exercise discretion in favour of the appellant.  There was compliance before the appellant was served with the interlocutory application, the time elapsed (given the holiday period) was not significant, no prejudice has been caused and the respondent himself is seeking an indulgence in the extension of time for the filing of a cross appeal.

1. The application to extend time so as to permit the respondent to file a cross appeal is not opposed and will be granted.  Time will be extended until 8 January 2001.

Orders:

1    That the order sought in par1 in the respondent's interlocutory application is granted and the time permitted for the filing of a cross appeal extended until 8 January 2001.

2    That pars2 and 3 of the interlocutory application are dismissed.