Rhodium Australia Pty Ltd v STATEWAY Pty Ltd - [2013] WADC 129

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RHODIUM AUSTRALIA PTY LTD -v- STATEWAY PTY LTD [2013] WADC 129

CORAM: HERRON DCJ

HEARD: 2 AUGUST 2013

DELIVERED : 2 AUGUST 2013

PUBLISHED : 13 AUGUST 2013

FILE NO/S: APP 99 of 2012

BETWEEN: RHODIUM AUSTRALIA PTY LTD
Appellant
AND
STATEWAY PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE BOON
File No  :GCLM 16646 of 2009

Catchwords:

Appeal - Magistrates Court - Section 40(3) Magistrates Court (Civil Proceedings) Act 2004 - Whether retrospective operation

Legislation:

Magistrates Court (Civil Proceedings) Act 2004
Courts Legislation Amendment Act 2012
Interpretation Act 1984 s 37, s 64

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr M A Detata
Respondent: Mr D W Thompson

Solicitors:

Appellant: Symons & Co Legal
Respondent: Thompson Downey Cooper

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

Burns v Minister for Health [2012] WASCA 267
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
Flaherty v Siemens Aust Limited [1995] WAIRComm 50; (1995) 75 WAIG 1676
Grant v Mansom [2013] WADC 53
Jackson v Chrisp [2012] WASCA 158
Maxwell v Murphy (1957) 96 CLR 261
Michael v Hawkins [2013] WADC 110
Myer Melbourne Ltd v Hammond [1984] VR 40
Rodway v the Queen (1990) 169 CLR 515
The State of Western Australia v Richards [2008] WASCA 134

HERRON DCJ:
(This judgment has been delivered extemporaneously on 2 August 2013 and has been edited from the transcript.)

On 15 October 2012, the Magistrates Court of Western Australia in the matter of Stateway Pty Ltd v Rhodium Australia Pty Ltd, GCLM 16646 of 2009, made the following orders:
1.The defendant's application for an adjournment of the trial is dismissed.
2.Judgment is entered for the claimant against the defendant in the sum of $19,885.62 plus interest thereon at the rate of 6% per annum from 11 November 2009, plus costs of the claim including any reserved costs to be assessed if not agreed.
On 6 December 2012 the appellant filed an appeal notice purportedly pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (the Act). At the time of the filing of the appeal notice, s 40 of the Act provided:
40.Appeal from Magistrates Court to District Court
(1)A party to a case that is not a minor case may appeal to the District Court against -
(a)any order made by the Magistrates Court in the course of proceedings in the case; or
(b)the judgment of the Magistrates Court in the case.
(2)An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.
(3)The appeal must -
(a)be commenced within 21 days after the date of judgment; and
(b)be conducted in accordance with rules of court made by the District Court.
(4)The District Court must decide the appeal on -
(a)the material and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted.
(5)Leave may only be given under subsection (4)(b) in exceptional circumstances.
(6)Subsection (4) does not prevent the District Court from dealing with an appeal against a decision of the Magistrates Court to admit or refuse to admit any evidence.
On 30 January 2013, s 6 of the Courts Legislation Amendment Act 2012, (the Amendment Act), came into operation pursuant to which s 40 of the Act was amended by the deletion of the existing s 40(3) and the insertion of a new s 40(3) and s 40(4A). Those amendments were in the following terms:
(3)An appeal cannot be commenced more than 21 days after the date of judgment unless the District Court gives leave to do so.
…
(4A)The appeal must be conducted in accordance with rules of court made by the District Court.
In Jackson v Chrisp [2012] WASCA 158, [128] the Court of Appeal held that the repealed s 40(3) of the Act did not confer on the District Court power to extend the time within which a party could appeal from the decision of a magistrate. The Court of Appeal also said [123]:
There is no provision in the Magistrates Court (Civil Proceedings) Act, or the District Court Act, which empowers the District Court to extend the time provided by s 40(3)(a) of the Magistrates Court (Civil Proceedings) Act for the commencement of an appeal to the District Court.
In this case, the 21 day period in which the appeal had to be filed expired on 5 November 2012. As I have earlier observed, the notice of appeal was in fact filed on 6 December 2012, some 31 days out of time.
Section 40 as it now reads, now clearly provides the court with the power to extend time in which to appeal. The issue raised by this appeal is whether s 40 in its current enactment operates retrospectively by providing the court with the power to retrospectively extend the time for filing the notice of appeal (filed on 6 December 2012), so as to, in effect, validate the appeal.
When this matter came on for argument before his Honour Scott DCJ in May this year, his Honour made formal orders that the preliminary issue as to whether the District Court has power to extend time to appeal the decision of the magistrate be determined as a preliminary issue.
Further orders were made by Scott DCJ on 21 June 2013 providing directions regarding the filing of submissions.
So the issue is does s 40(3) operate retrospectively so as to enable or entitle the appellant to seek leave to extend the time in which to appeal.
Both the parties have addressed me on the position at common law as to the law regarding the retrospective operation of legislation. The parties have also addressed me in relation to the s 37 of the Interpretation Act 1984 and also s 64.
The starting point for the common law is that there is a presumption that statutory enactments do not operate retrospectively unless a clear intention that they operate retrospectively is stated.
The presumption is that statutes only operate prospectively and the standard passage which is cited is that of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261, 267 in which the chief justice said:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
The facts in that case were that under a New South Wales statute a person was entitled to pursue a claim for compensation within 12 months of the death of a deceased person. A provision of that Act, which stated such an action must be commenced within 12 months, was later amended so as to extend the period in which an action could be commenced to six years.
When the amendment came into force, the 12 month period in which the plaintiff was required to bring the action had expired and the plaintiff, after the amendment extending the period to six years commenced operation, commenced an action in respect of the death of her husband.
The High Court held that her right to bring the action had expired and the amendment did not revive her right to bring that action. In my view, the circumstances in that case are very similar to the circumstances in the matter before me today.
The law concerning retrospective operation of statutes has been considered in a number of cases. In Rodway v the Queen (1990) 169 CLR 515, 519, the High Court said:
Where a period is limited by 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 the 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.
Later (519), the High Court also cited the passage from Maxwell v Murphy which I have just cited. Earlier (518), the High Court said:
The rule of common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation.
That passage comes after the High Court considered s 16(1) of the Interpretation Act 1931 (Tasmania). Section 16(1) is in similar terms to s 37(1) of the Interpretation Act 1984 (Western Australia).
I have today been referred, by counsel for the appellant, to Burns v Minister for Health [2012] WASCA 267. The principles which I have referred to above are also confirmed and summarised in the judgment of his Honour Martin CJ [15] ‑ [22].
Those same principles have also been addressed by the Court of Appeal in The State of Western Australia v Richards [2008] WASCA 134, (Steytler P), [31] - [35].
Finally, in relation to the common law principles, the High Court in Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 set out and confirmed the same principles. In particular, Kirby J [80] said:
So far as common law principle is concerned, it is a strong assumption of the operation of legislation that amendments to a statute will ordinarily be construed as having a prospective operation only.
He went on further in the same paragraph:
Generally speaking, it is presumed that legislation does not have a retrospective operation on rights without clear provision to that effect.
That case concerned amendments to the then Worker's Compensation and Rehabilitation Act and whether amendments to that Act impacted upon a worker's rights in relation to worker's compensation entitlements. The amendments created restrictions in relation to worker's rights. It was held that the amendment affected substantive rights and there was no clear intention that the amendment to the Worker's Compensation and Rehabilitation Act operated retrospectively so as to affect the worker's rights.
The principles set out in that case are consistent with the principles I have outlined.
The common law position is reflected in s 37 of the Interpretation Act and I have already referred to the passage cited in Rodway (518) which referred to the equivalent Tasmanian provision.
The matter is also dealt with in Dossett [17], [31]. In Richards (34), Steytler P confirms that the presumption against retrospective operation, which is common law based, has statutory backing through the enactment of s 37(1)(C) of the Interpretation Act. See also Burns v Minister for Health [22].
So the position then is that unless a contrary intention is clearly expressed, an amendment will not operate retrospectively so as to affect or take away existing substantive rights.
Therefore the issue is whether the amendment to s 40(3) first affects substantive rights and secondly, if it does, whether an intention is clearly expressed so that it operates retrospectively.
It is beyond doubt that a right of appeal is a substantive right, Jackson v Chrisp [123]. Equally, a party against whom an appeal is to be pursued has a right to the benefit of their judgment and once the time for appealing has expired the party who has the benefit of the judgment has a substantive right against an appeal proceeding. See: Myer Melbourne Ltd v Hammond [1984] VR 40, 47 (lines 35 – 50).
In Yew Bon Tew's Case the Privy Council said, at ([1983] A.C.) p 563: 'When a period of limitation has expired, a potential defendant should be able to assume that he is no longer at risk from a stale claim. He should be able to part with his papers if they exist and discard any proofs of witnesses which have been taken; discharge his solicitor if he has been retained; and order his affairs on the basis that his potential liability has gone. This is the whole purpose of the limitation defence.'
So in other words the respondent to this appeal obtained a substantive right to organise its affairs once the 21 day appeal period had expired, and to proceed on the basis that it was no longer at risk of an appeal being brought against it. That right is a substantive right.
I have already observed that the right to appeal expired on 5 November 2012. In my view that right is not revived by the amendment to s 40 which commenced operation on 30 January 2013.
I have also been referred by counsel for the respondent to a recent decision of this court of his Honour Judge Staude in Michael v Hawkins [2013] WADC 110. Judge Staude referred to Jackson v Chrisp and noted that was authority, which is not disputed here, that the appellant's right to appeal by virtue of the repealed provisions of the District Court Act was lost upon the expiration of 21 days.
He then deals with the effect of the amendment to s 40(3) and concludes [12] that the amendment to s 40(3) is not merely procedural and does affect accrued rights. He goes on to observe that in the absence of a clearly expressed intention to the contrary the operation is not retrospective. He then concludes that s 40(3) as amended is not retrospective, or does not operate retrospectively.
Judge Staude also referred to an earlier decision in this court of her Honour Judge Deane in Grant v Mansom [2013] WADC 53 in which her Honour expressed a contrary view and respectfully disagrees with the decision.
I also, with respect to her Honour Judge Deane, disagree with the view she expressed in that case. It does seem that the matter was not fully argued or canvassed before her and in my respectful view the observations of his Honour Judge Staude are to be preferred.
In argument before me today counsel for the appellant referred to the second reading speech in parliament and the parliamentary debates when the amendment to s 40(3) was debated. I was referred to those passages in Hansard in which the Honourable The Attorney General Mr Mischin said that the amendment to s 40 of the Act will clarify the power of the District Court to extend the time available to appeal to the District Court against decisions of the Magistrates Court.
In my view the amendment has done precisely that. It certainly clarifies the position and now makes clear what was perhaps unclear before, at least until the decision in Jackson v Chrisp, which made it clear there was no power or discretion in this court to extend the time in which to appeal by s 40(3) in its previous or repealed form.
Counsel for the appellant also referred me to s 64 of the Interpretation Act in support of the appellant's application and to a decision of the Western Australian Industrial Relations Commission in Flaherty v Siemens Aust Limited [1995] WAIRComm 50; (1995) 75 WAIG 1676.
In my respectful view, that case does not help or assist the appellant and is not authority for the proposition advanced by counsel for the appellant. Indeed, in my view the decision of the Industrial Relations Commission is to the contrary.
The commission noted by reference to s 29(2) of the Industrial Relations Act 1979 that there was a time limit stipulated for taking action and said that:
… the power to extend time has no application in this case since on its proper construction section 29(2) does not merely attach a time limit for instituting the proceedings, but imposes a time limit 'which is an essential condition of the right itself and unless the condition is satisfied there is no right' …
In my view, that is similar to the position here. The former provision of s 40(3) provided a right of appeal providing the appeal was commenced with 21 days.
The Commission in that case determined that s 64 of the Interpretation Act had no application because of the specific provisions of the Industrial Relation Act which indicted an intention that s 64 have no application.
In my view, s 64 is not relevant in this case and has no application. Counsel for the appellant also, in referring me to Burns v Minister for Health, sought, as I understand the submission, to advance that case as supporting the argument that s 40(3) as amended expresses an intention to have retrospective operation.
In my respectful view, Burns v Minister for Health does not support that submission. Indeed it is to the contrary. Martin CJ [23] ‑ [26] notes [25] that the Minister for Health was not in a position (to assume he was no longer at risk from a stale claim) as at the commencement of the Limitation Act 2005. The chief justice goes on to say that at the time that that Act was enacted, the minister could not be said to have had an indefeasible limitation defence and therefore it could not be said that the cause of action was completely barred by the lapse of time.
He concludes:
Accordingly, neither section 37 of the Interpretation Act nor the common law principles …
… preclude s 7 of the Act being construed so as to apply to causes of action which had accrued prior to the commencement day …
He also noted that the defendant was still at risk and did not have an indefeasible limitation defence. He said the minister's contention, that s 41 of the 2005 Act does not apply, ignored the clear and plain wording of s 7 of the Act.
In my respectful view, that reasoning applies to the current situation before me and the circumstances there can be distinguished from the current circumstances where the 21 appeal period has expired. The appellant no longer has any right of appeal which is quite different to the position in relation to the Minister for Health in Burns where the minister still faced the prospects of action being taken against him because the right of action had not expired.
In this case, the respondent was entitled to assume that once the appeal period had expired, there was no longer any right of appeal against it. In my view, Burns v Minister for Health does not support the appellant's position. Indeed it supports the respondent's position.
In summary, I conclude the amended s 40(3) does not operate retrospectively and does not revive the appellant's right of an appeal which has expired.
The respondent has obtained a substantive right by which it is protected against an expired right of appeal. Section 40 does not express an intention that it operates retrospectively so as to affect that substantive right of the respondent.
In my view, the clear meaning of s 40 is that it operates prospectively and does not operate retrospectively.
In argument before me today, there was some discussion about whether the appellant is now able to file an appeal pursuant to the amended s 40(3) and while that matter has not been fully argued before me and strictly speaking I do not need to determine it, my view is that if the appellant was to now file an appeal, that appeal would be incompetent because it has expired. It expired on 5 November 2012 and it can now no longer be revived.
I therefore order the appellant's appeal be dismissed and secondly, save as has previously been ordered, the appellant pay the respondent's costs of the appeal including reserved costs to be taxed if not agreed.