Michael v Hawkins - [2014] WASCA 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MICHAEL -v- HAWKINS [2014] WASCA 64

CORAM: PULLIN JA
NEWNES JA

HEARD: 7 MARCH 2014

DELIVERED : 26 MARCH 2014

FILE NO/S: CACV 85 of 2013

BETWEEN: EDWARD MICHAEL
Appellant
AND
EDWARD HAWKINS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAUDE DCJ
Citation  :MICHAEL -v- HAWKINS [2013] WADC 110
File No  :APP 96 of 2012

Catchwords:

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

Legislation:

Courts Legislation Amendment Act 2012 (WA)
District Court Rules 2005 (WA), reg 6(1)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(3)
Rules of the Supreme Court 1971 (WA), O 3 r 2(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: In person
Respondent: In person

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

Grant v Manson [2013] WADC 53
Rodway v The Queen (1990) 169 CLR 515

PULLIN JA: This is an appeal by the appellant against the judgment of Staude DCJ in the District Court dismissing the appellant's appeal from an order of a magistrate. In the Magistrates Court, the appellant sued the respondent, alleging a breach of contract in relation to an agreement between the parties for repairs by the respondent to the appellant's motor vehicle.
The magistrate dismissed the appellant's claim on 8 November 2012.
The appellant lodged an appeal against the magistrate's decision in the District Court on 3 December 2012, which was after the expiry of the 21 days limited for lodging an appeal pursuant to s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA). The appellant sought an extension of time in which to appeal.
Staude DCJ said in his reasons:
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.
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.
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.
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 [5]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michael v Hawkins

Details

AGLC: Michael v Hawkins [2014] WASCA 64
Case: [2014] WASCA 64
Decision Date: 26 MARCH 2014

CaseChat Overview and Summary

In the matter of Michael v Hawkins, the respondent applied for an extension of time to appeal a decision of the Magistrates Court of Western Australia. The appeal was in relation to a civil proceeding, and the applicant sought to challenge the court's decision on the basis that the amendment to section 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) by section 6 of the Courts Legislation Amendment Act 2012 was retrospective. The court had to determine whether the amendment applied to proceedings that occurred before its commencement date.

The primary issue before the court was whether the amendment to section 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) was retrospective in effect. The court had to consider whether the amendment applied to proceedings that occurred before its commencement date, and if so, whether it was permissible for the amendment to have retrospective effect. The court also had to determine whether the applicant's application for an extension of time to appeal was valid, and whether the extension should be granted.

The court held that the amendment to section 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) was not retrospective in effect. The court found that the amendment did not apply to proceedings that occurred before its commencement date, and that it was not permissible for the amendment to have retrospective effect. The court also found that the applicant's application for an extension of time to appeal was valid, but that the extension should not be granted. The court held that the applicant had not provided sufficient evidence to demonstrate that the extension was necessary, and that the application should be dismissed.

In conclusion, the court held that the amendment to section 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) was not retrospective in effect, and that the applicant's application for an extension of time to appeal was dismissed. The court found that the applicant had not provided sufficient evidence to demonstrate that the extension was necessary, and that the application should be dismissed. The court's decision provides guidance on the retrospective effect of legislative amendments and the criteria for granting extensions of time to appeal.

Orders