Morris v Australia Meat Holdings Pty Ltd

[1999] QCA 135

IN THE COURT OF APPEAL	99.135
SUPREME COURT OF QUEENSLAND

Appeal No. 6503 of 1998

Brisbane

[Aust. Meat Hold. P/L v. Morris]

BETWEEN:

AUSTRALIA MEAT HOLDINGS PTY LTD

ACN 011 062 338

(Defendant) Appellant

AND:

KEVIN RONALD MORRIS

(Plaintiff)	Respondent
McMurdo P. Pincus J.A. Fryberg J.

Judgment delivered 20 April 1999

Judgment of the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	Appeal - right of appeal - whether appeal governed by new s. 118 District Court Act 1967 (effective from 1 August 1997) - effect of s. 138 District Court Act 1967 - whether appeal competent within s. 118(2) District Court Act 1967.
Leavers v. Purcell (C.A. No. 361 of 1997, 10 February 1998) Schiliro v. Peppercorn Child Care Centre (C.A. No. 9640 of 1998, 22 December 1998) Sunskill Investments Pty Ltd v. Townsville Office Services Pty Ltd [1991] 2 Qd.R. 210
Counsel:	Mr P W Hackett for the appellant. Ms C E Carew for the respondent.
Solicitors:	Cleary & Lee for the appellant. Shine Roche McGowan for the respondent.
Hearing Date:	8 April 1999.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6503 of 1998

Brisbane

Before McMurdo P.
Pincus J.A.
Fryberg J.

[Aust. Meat Hold. P/L v. Morris]

BETWEEN:

AUSTRALIA MEAT HOLDINGS PTY LTD

ACN 011 062 338

(Defendant) Appellant

AND:

KEVIN RONALD MORRIS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20 April 1999

1. The appellant was the defendant in an action in the District Court in which judgment was

   given against it in the sum of $40,098 with costs. The respondent has argued that the appeal is

   incompetent; deciding the issue raised by that submission involves some questions of statutory

   construction.

2. The plaint which was filed on 16 February 1996 claimed an unspecified amount of damages

   for negligence and breach of statutory duty. Judgment was given on 19 June 1998 and a notice of

   appeal was filed on 16 July 1998. Between institution of the proceedings and the giving of judgment

   there came into effect, on 1 August 1997, a new s. 118 of the District Court Act 1967; that section sets out the circumstances in which there is a right of appeal from a civil judgment of the

   District Court to this Court and also deals with the grant of leave to appeal. We set out below the

   relevant provisions of the present s. 118 which, according to the appellant's argument, does not

   apply to the present case; the respondent's counsel says it does. To put the matter simply, the

   principal difference between the old and new versions of s. 118 is that the former gave a right of

   appeal from the District Court in an action involving a sum of $10,000 whereas the latter gives such

   a right in an action involving an amount equal to or more than the Magistrates Court jurisdictional

   limit; that limit became, on 1 August 1997, the sum of $50,000: see s. 73 of the Courts Reform

   Amendment Act 1997.

3. The appellant argues that it is unaffected by the change in the District Court Act 1967

   because it had a vested right of appeal under the old s. 118; if that is so, the appeal is competent,

   for the amount of the judgment challenged substantially exceeds $10,000. In support of its

   contention, the appellant relies on the decision of the Full Court in Sunskill Investments Pty Ltd v.

   Townsville Office Services Pty Ltd [1991] 2 Qd.R. 210, in which the principle that a right of appeal

   in existence at the institution of proceedings is unaffected by subsequent statutory restriction was

   applied. The answer to this contention made by Ms Carew for the respondent was that s. 138 of

   the District Court Act 1967 shows that the appellant in the present case can have no right of

   appeal unless such a right is given by the new s. 118. Section 138 is as follows:

   "(1) This section applies if, before the commencement of the Courts Reform
   Amendment Act 1997, section 47 -

   (a) a party dissatisfied with a judgment of a District Court started an appeal, or applied for leave to appeal, under section 118 as in force immediately before the commencement; and

   (b)        the appeal or application has not been finally decided.

   (2) The appeal or application, and any appeal allowed on the application, may be
   dealt with as if the Courts Reform Amendment Act 1997, section 47 had not
   been enacted.
   (3) This section expires 2 years after it commences".

   According to Ms Carew's argument, a party dissatisfied with a civil judgment of the District Court

   has to show a right of appeal under the new s. 118, unless there was an appeal pending on 1 August

   1997; that was not so, in the present case. The argument for the appellant, advanced by Mr

   Hackett, was as we understood it that s. 138 in its terms has only the effect (so far as relevant to

   the present case) of entitling appellants whose appeals were pending at 1 August 1997 to rely on

   the old s. 118; it was said that s. 138 does not affect the principle applied in the Sunskill case. If

   that was Parliament's intention, then s. 138 is strangely expressed; being designed, as it is said, to

   preserve the principle of Sunskill which makes the critical date that on which the plaint was filed,

   it seeks to achieve that by language which seems to make the critical date that on which the appeal

   was filed.

4. A vice of the appellant's argument is that, if it is correct, the enactment of s. 138 of the

   District Court Act 1967 had no effect, so far as rights of appeal are concerned, other than to state,

   rather misleadingly, part of the effect of the Sunskill principle. In our opinion the interpretation of

   s. 138 which best achieves the legislative purpose (see s. 14A of the Acts Interpretation Act

   1954) must be that contended for by Ms Carew. It has the advantage, also, of consistency with

   the interpretation arrived at by this Court in relation to a similar problem concerning appeals from

   the Magistrates Court, dealt with in Leavers v. Purcell [2000] 1 Qd.R. 000 for the reference to

   which we are indebted to the President.

5. It follows that the appeal is incompetent unless it can be brought within the terms of the

   current s. 118 of the District Court Act 1967, the relevant provision of which is subs. (2):

   "A party who is dissatisfied with a final judgment of a District Court in its original
   jurisdiction may appeal to the Court of Appeal if the judgment-

(a) is given-
(i) for an amount equal to or more than the Magistrates Courts
jurisdictional limit; or
(ii) in relation to a matter at issue with a value equal to or more than the
Magistrates Courts jurisdictional limit; or

(b)        involves directly or indirectly any claim, demand or question in relation to

any property or right with a value equal to or more than the Magistrates Courts

jurisdictional limit".

Here the judgment was not given for an amount equal to or more than $50,000, so subs. (2)(a)(i)

does not apply. It was argued for the appellant, however, that the judgment was given in relation

to a matter at issue with a value equal to or more than $50,000; if that is so then subs. (2)(a)(ii)

applies.

1. In support of his submission, Mr Hackett referred us to the decision of this Court in Schiliro

   v. Peppercorn Child Care Centres Pty Ltd [2000] 1 Qd.R. 000. There the appeal was brought

   by the plaintiff from a District Court judgment dismissing an action in which the plaint claimed

   $200,000 damages. The Court held that s. 118(2)(b) applied because of the amount claimed by

   the plaint.

2. Looking at the matter broadly, it seems improbable that the legislature intended by enacting

   s. 118 in its present form to give a defendant a right to appeal against a judgment of the District

   Court for any sum, however small, as long as the amount claimed in the plaint equalled or exceeded

   the Magistrates Court jurisdictional limit. Reliance was placed by the respondent's counsel on a

   dictum from the judgment of Barwick C.J. in Moller v. Roy (1975) 132 C.L.R. 622 at 626; there

   his Honour dealt with statutory provisions similar to but not identical with those with which this Court is presently concerned. But it is unnecessary to determine whether the dictum relied on

   should be applied here, for there is no reason to conclude either that the value of the "matter at

   issue", the subject of the judgment attacked, is equal to or more than $50,000 or that the value of

   the "claim, demand or question" is equal to or more than that sum. There is not here, as there was

   in Schiliro, a claim in the plaint for $50,000 or more (no amount is mentioned in the plaint); further,

   the judgment has fixed the value at less than $50,000. That fixation is challenged as excessive;

   neither side contends that the amount awarded was too low.

3. It was argued that Schiliro should be applied because in the course of proceedings

   statements of loss and damage pursuant to r. 149A of the Rules of the District Court were

   delivered and, it was argued, it should be inferred from them that the amount claimed exceeded

   $50,000. There were five statements delivered under r. 149A, but the total of the amounts claimed

   in them is conceded to be, and in fact is, less than $50,000. It was argued in effect that we should

   add to the specific sums mentioned in those statements a reasonable allowance for damages for pain

   and suffering and loss of amenities, thus taking the inferred amount claimed over $50,000; but it

   does not appear to us that the principle of Schiliro should be extended so as to authorise that

   procedure.

4. Schiliro was an appeal by a plaintiff who was wholly unsuccessful in a claim for damages

   and was held to have a right of appeal by Thomas J. (as his Honour then was) on the basis that as

   over $50,000 was claimed in the plaint there was a prima facie right of appeal, and by White J. on

   the basis that the amount claimed is the measure of the value of the claim. We cannot accept that, where there is a judgment for less than $50,000 challenged by a defendant, the circumstance that

   the plaintiff's pleading claimed $50,000 or more could justify holding that the defendant has an

   appeal as of right by attaching a value to the "matter at issue" or "claim, demand or question" in

   excess of the amount of the judgment. But whatever be the proper view about that point, here the

   plaint did not claim any sum and the Schiliro doctrine is inapplicable.

5. In this case, the judgment was for less than $40,000 exclusive of interest. The appellant

   claims this sum was in any case excessive and submits that the value of the respondent's claim was

   so low that costs should have been awarded by the trial judge on the Magistrates Court scale. In

   those circumstances, its submission that the matter at issue has a value equal to or more than

   $50,000 is particularly unpalatable.

6. Application was made orally for leave to appeal in case it should be held that the appeal

   instituted was incompetent. Nothing was said in support of the application for leave, except the

   criticisms made in support of the appeal, which we heard in full, reserving the question of the right

   to appeal. That is, the only ground advanced for the grant of leave was that the reasoning of the

   primary judge was argued to be in some respects erroneous. It is our view that the case is not one

   in which any evident injustice has been done, nor does any other basis on which leave might

   properly be granted emerge from the arguments advanced with respect to the appeal.

7. Summary

1. Since the appeal from the District Court judgment was instituted after 1 August

1997, the right to appeal is governed by the provisions of the new s. 118 of the District Court Act
1967 which came into effect on that date.

2.          The judgment which the appellant/defendant challenges was one for less than

$50,000 and there is no contention that a higher figure should have been awarded.

3.          It is unnecessary to determine whether, if the plaint had claimed an amount of

$50,000 or more, that amount rather than the amount of the judgment would have been taken to

be the "value" at stake in the defendant's appeal for the purposes of s. 118 of the District Court

Act 1967; here, no amount was mentioned in the plaint.

4.          The appeal is incompetent, as neither the amount of the judgment nor the relevant

"value" for the purposes of s. 118(2) of the District Court Act 1967 equalled or exceeded

$50,000.

5.          The case is not one in which leave is appropriate.

1. We dismiss the appeal with costs.