Michael v Hawkins

[2013] WADC 110

MICHAEL -v- HAWKINS [2013] WADC 110

Last Update:  25/07/2013

MICHAEL -v- HAWKINS [2013] WADC 110
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 110
Published:	15/07/2013
Case No:	APP:96/2012	Heard:	21 JUNE 2013
Coram:	STAUDE DCJ	Delivered:	21/06/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	4	Judgment Part:	1 of 1
Result:	Application to extend time dismissed Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]

On Appeal from:	Jurisdiction: MAGISTRATES COURT OF WESTERN AUSTRALIA Coram: SHARRATT M File Number: GCLM 393 of 2011
Parties:	EDWARD MICHAEL EDWARD HAWKINS
Catchwords:	Appeal Application for extension of time to appeal Whether amendment to s 40(3) Magistrates Court (Civil Proceedings) Act 2004 by s 6 Courts Legislation Amendment Act 2012 is retrospective
Legislation:	Courts Legislation Amendment Act 2012 District Court Rules 2005 Magistrates Court (Civil Proceedings) Act 2004
Case References:	Grant v Mansom [2013] WADC 53 Jackson v Chrisp [2012] WASCA 158 Maxwell v Murphy [1957] 96 CLR 261 Rodway v The Queen [1990] 169 CLR 515

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : MICHAEL -v- HAWKINS [2013] WADC 110 CORAM : STAUDE DCJ HEARD : 21 JUNE 2013 DELIVERED : 21 JUNE 2013 PUBLISHED : 15 JULY 2013 FILE NO/S : APP 96 of 2012 BETWEEN : EDWARD MICHAEL

Appellant

AND

EDWARD HAWKINS
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : SHARRATT M

File No : GCLM 393 of 2011

Catchwords:

Appeal - Application for extension of time to appeal - Whether amendment to s 40(3) Magistrates Court (Civil Proceedings) Act 2004 by s 6 Courts Legislation Amendment Act 2012 is retrospective

(Page 2)

Legislation:

Courts Legislation Amendment Act 2012
District Court Rules 2005
Magistrates Court (Civil Proceedings) Act 2004

Result:

Application to extend time dismissed
Appeal dismissed

Representation:

Counsel:

Appellant : In person
Respondent : No appearance

Solicitors:

Appellant : Not applicable
Respondent : Not applicable

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

Grant v Mansom [2013] WADC 53
Jackson v Chrisp [2012] WASCA 158
Maxwell v Murphy (1957) 96 CLR 261
Rodway v The Queen (1990) 169 CLR 515

(Page 3)

1 STAUDE DCJ: [This judgment was delivered extemporaneously on 21 June 2013 and has been edited from the transcript.]

2 This is an appeal from the decision of his Honour Magistrate Sharratt given on 8 November 2012 dismissing the appellant's claim for damages for breach of contract arising out of an agreement between the appellant and the respondent for the mechanical repair of the appellant's motor vehicle.

3 The notice of appeal is in the form prescribed by the District Court Rules 2005 (Form 6) dated 3 December 2012. It indicates that an extension of time is required. The form reflects the amendment to s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 by s 6 of the Courts Legislation Amendment Act 2012, the effect of which is to empower this court to grant leave to commence an appeal after 21 days from the date of the decision in the Magistrates Court.

4 The notice of appeal is accompanied by an application for extension of time (Form 9) also dated 3 December 2012.

5 At the time of the making of the decision appealed from, and up to 30 January 2013 when the Courts Legislation Amendment Act 2012 came into operation fully, s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 provided that an appeal to this court from a decision of a magistrate had to be lodged within 21 days.

6 In Jackson v Chrisp [2012] WASCA 158 the Court of Appeal confirmed that this court had no power to grant an extension of time within which to appeal if an appeal were lodged after 21 days from the date of the decision. The appellant's right to appeal was lost upon the expiration of 21 days from the decision.

7 By s 6 of the Courts Legislation Amendment Act 2012, s 40(3) was amended to provide that an appeal from a magistrate cannot be commenced after 21 days except with leave of this court.

8 The question raised in this matter is whether s 40(3), as amended, operates retrospectively so as to revive a right of appeal which has been lost by the effluxion of time.

9 There is a presumption against retrospectivity. It is the presumption that the Parliament when enacting legislation intends it to operate prospectively unless the language used in the statute expresses a contrary intention: see Maxwell v Murphy (1957) 96 CLR 261, 267 (Dixon CJ).

(Page 4)

10 Unless a contrary intention is shown, the statute will not be construed so as to take away or alter any rights which have accrued to the date of the enactment. Procedural statutes which operate to affect existing rights, such as a statute of limitation, may not be merely procedural and may fall within the presumption.

11 In Rodway v The Queen (1990) 169 CLR 515, 519 the High Court said:

When a period is limited by a statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of an opportunity of instituting an action which is within time.

If it were given a retrospective operation the amending legislation would operate so as to impair existing substantive rights, either the right to be free of a claim or the right to bring a claim, and such an operation could not be said to be merely procedural.

12 The amendment to s 40(3) is not merely procedural and does affect accrued rights. Accordingly, in the absence of a clearly expressed intention to the contrary, its operation is not retrospective.

13 The respondent has a right to keep his judgment in the court below, the appellant's right to appeal having been lost by his failure to appeal within 21 days from the decision. That outcome is consistent with the public interest in a finality to litigation.

14 To the extent that the decision of this court in Grant v Mansom [2013] WADC 53 expresses a contrary view, I must expressly disagree with it. But it is clear from the reasons in that decision that the point excited no controversy and was therefore not decided as such.

15 As there is no power to extend time in this case, the appeal must be dismissed.

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