Raymond Arthur Fitzpatrick v Tony Kidney

[2006] ACTCA 1

RAYMOND ARTHUR FITZPATRICK v TONY KIDNEY [2006]
ACTCA 1 (1 February 2006)

EX TEMPORE JUDGMENT

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 46 - 2005
No. SCA 64 of 2003

Judge:  Crispin P
Court of Appeal of the Australian Capital Territory
Date:           1 February 2006

IN THE SUPREME COURT OF THE  )   No. ACTCA 46 - 2005
  )  No. SCA 64 of 2003
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:RAYMOND ARTHUR FITZPATRICK

Appellant

AND:TONY KIDNEY

Respondent

ORDER

Judge:  Crispin P
Date:  1 February 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. the application for leave to appeal is dismissed;

2. the applicant pay the respondents’ costs.

IN THE SUPREME COURT OF THE  )   No. ACTCA 46 - 2005
  )  No. SCA 64 of 2003
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:RAYMOND ARTHUR FITZPATRICK

Appellant

AND:TONY KIDNEY

Respondent

Judges:  Crispin P
Date:  1 February 2006
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. In this matter the applicant seeks leave to appeal out of time from two judgments of this Court.  

1. The first is a judgment of Master Harper, delivered on 14 November 2003, refusing him leave to appeal from a decision of the Small Claims Court requiring him to pay $10 conduct money to each of three people to whom subpoenas had been issued, and the sum of $135 to a fourth person in respect of witness expenses. 

1. The second decision that the applicant seeks to challenge is a decision of Justice Connolly delivered on 6 February 2004, refusing a stay of proceedings in relation to Master Harper’s decision. 

1. It should be noted that section 275 of the Magistrates Court Act 1930 (ACT) provides as follows:

(1)A party to a proceeding in the Small Claims Court may, with the Supreme Court’s leave, appeal from a judgment of the Small Claims Court in the proceeding. 

(2)The Supreme Court may grant leave only if satisfied: -

(a)that the decision of the Small Claims Court on a question of law was wrong; or

(b)that the conduct of the proceedings in the Small Claims Court was unfair to the applicant for leave to appeal. 

1. It should be noted that this section does not permit leave to be granted to enable an applicant to contend that the Magistrate who heard the matter made erroneous findings of fact or inappropriately exercised his or her judicial discretion.  The applicant must establish one of the matter specified in subsection (2). 

1. In the present case the applicant, who is unrepresented, sought to challenge the Master’s decision to refuse him leave to appeal from the Small Claims Court by arguing that the orders for payment of conduct money and witness expenses should not have been made.  As a consequence of an error in the Magistrates Court registry, the dates on the subpoenas that Mr Fitzpatrick had issued had been altered and the witnesses commanded to attend on the wrong day.  The applicant contends that, in those circumstances, he should not have been required to provide conduct money or ordered to pay witness expenses to a witness who attended on the date originally nominated for hearing, which was apparently four days after the date wrongly inserted by court staff. 

1. It seems to me that this argument raises issues of fact and/or the application of judicial discretion, rather than issues as to whether or not an incorrect legal principle was adopted by the Magistrate. In any event, it was entirely understandable that the Master would refuse leave when the decision sought to be appealed from was interlocutory in character and involved, in all, the sum of $165. The legislature clearly intended that decisions of the Small Claims Court should normally be final. The power to grant leave to appeal from such decisions should be exercised sparingly and only when the criteria specified in section 275 have been satisfied. I am unable to see any viable ground of appeal against the learned Master’s decision.

1. The extensive delay also militates against the grant of leave.  The present application was made by a notice of motion filed on 20 October 2005, which was almost two years after the judgment given by the Master.  Whilst Mr Fitzpatrick has sought to explain why he did not apply earlier, the length of the delay is still of some relevance.  The respondent has acted, and been entitled to act, upon the assumption that the decision would not be appealed once the time permitted for appeal had expired and no application had been made.

1. In subsequently dismissing the application for a stay of proceedings, Justice Connolly held that no ground for such a stay had been established.  Having read the transcript of those proceedings, I can see no reason to doubt the correctness of his Honour’s decision.  A stay of proceedings is not granted merely because there has been an application for leave to appeal against an earlier order.  Appropriate grounds must be established.  In the present case it was not suggested that any of the respondents were likely to divest themselves of assets, flee overseas, or act in a way that would prevent them from having the ability to repay the money or otherwise frustrate the applicant’s prospects of recovering the sums in question should his appeal succeed.  Indeed, no reason for his Honour to have granted a stay seems to have been identified.  There was also delay in seeking leave to appeal from that decision.

1. Whilst I am not without sympathy for the sense of grievance obviously felt by Mr Fitzpatrick, his applications must be dismissed. 

1. I order that the applicant pay the respondents’ costs. 

   I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date: 9 February 2006

Counsel for the Appellant:  Self represented litigant

Counsel for the Respondent:  Mr I Gillespie-Jones

Solicitor for the Respondent:  Gillespie-Jones & Co

Date of hearing:  1 February 2006

Date of judgment:  1 February 2006