Softwood Holdings Ltd v Andrew Cunningham and Howard Henley Stevenson No. SCGRG 93/1371 Judgment No. 4061 Number of Pages 4 Appeal Summary Proceedings

[1993] SASC 4061

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Appeal - summary proceedings - Plaintiff brought proceedings by way of judicial review to prohibit further hearing of complaint being heard in Magistrates Court pending foreshadowed appeal against ruling by Magistrate against submission of no case to answer - held that as the foreshadowed appeal would be incompetent, leave to serve the application should be refused - the words "judgment, order or decision" including "an interlocutory judgment or order" appearing in the definition of a "judgment" which may be made the subject of an appeal under s.42 of the Magistrates Court Act 1991 do not include a ruling on a submission of no case to answer. Magistrates Court Act 1991s.42 and s.3(1). BHP v Stevenson (unreported) 190/93, Full Court of the Industrial Court 2.7.93, considered.

HRNG ADELAIDE, 22 July 1993 #DATE 22:7:1993
Counsel for plaintiff:     Mr M.J. Roder
Solicitors for plaintiff:    Norman Waterhouse
Counsel for defendants:     Ms P.M. Barnett
Solicitors for defendants: Crown Solicitor's Office

ORDER
Leave to serve the proceedings refused.

JUDGE1 PERRY J The plaintiff, Softwood Holdings Ltd, is the defendant to a complaint issued out of the Magistrates Court sitting at Mount Gambier. The complaint alleges breaches of s.19(1) of the Occupational Health, Safety and Welfare Act1986. 2. The plaintiff has defended the complaint, which is part heard before a learned Special Magistrate who is one of the two defendants. The other defendant is the complainant. 3. On 21 July 1993 the learned Special Magistrate refused to accede to a submission that there was no case to answer, or that the complaint be dismissed there and then in accordance with the principles which find expression in the case of R v Prassad 23 SASR 161. The hearing of the complaint is due to resume tomorrow. 4. By summons issued out of this Court on 21 July 1993, the plaintiff seeks judicial review in the nature of prohibition preventing the learned Magistrate from further hearing the complaint until the determination of a foreshadowed appeal to the Full Court of the Industrial Court against the learned Magistrate's finding that the plaintiff has a case to answer. He also seeks an injunction to the same effect. The immediate matter with which I am to deal is an application for leave to serve the summons for judicial review, pursuant to Rule 98.03. Notwithstanding the fact that it was an application for leave to serve the summons, Ms Barnett appeared on the hearing for the defendants, having status to oppose the order pursuant to leave granted under Rule 98.04A(3). 5. The application raises the question whether the proposed appeal against the ruling that there is a case to answer made during the hearing of the complaint in the Magistrates Court which is proceeding summarily, would be competent. 6. The right of appeal, if any, is given by s.42 of the Magistrates CourtAct. That section enables an appeal to be brought against any "judgment" given in the "action" (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination). 7. The word "judgment" is defined in s.3(1) of the Act to mean a "judgment, order or decision and includes interlocutory judgment or order". Mr Roder for the plaintiff contended that the ruling was an "order" within the meaning of the definition of judgment as it appears in s.3(1). 8. The line of reasoning which he adopted in support of that proposition was that if the application to dismiss the complaint on the basis that there was no case to answer had been successful, it would have resulted in an order to that effect. So the argument goes, a refusal to accede to an application for such an order should itself be treated as an order. 9. In my opinion, that process of reasoning is not apt to determine the question of competency of any foreshadowed appeal in this case. It seems to me that the words "judgment, order or decision" where they appear in s.3(1), should not be interpreted to enable the fragmentation of the hearing of criminal or summary charges which are proceeding in a summary fashion, if on a proper construction of the provisions, that result can be avoided. The need to ensure the orderly disposal of summary proceedings militates against allowing appeals from rulings as to matters of this kind. To allow such appeals would be to cause a serious disruption to the prompt and just determination of complaints in Magistrates Courts. 10. True it is that if the words of the Act compel such a conclusion, the words must be given effect to, notwithstanding the interruption to the orderly progress of criminal proceedings, but the legislation should be construed bearing in mind the observations which I have made. 11. That some limit must be placed upon the meaning of the words "judgment, order or decision" is plain from a consideration of the various circumstances in which the Court may make a "decision". No doubt a ruling against the admissibility of an item of evidence is, in one sense, a "decision", but nobody could sensibly suggest that such a decision is within the meaning of the word "decision" in s.3(1) so as to found an appeal. In my opinion, the Magistrates action in holding that there is a case to answer amounts to a mere ruling, which is not a judgment, order or decision within the meaning of those words in s.3(1) of the Act. It follows that any appeal would be incompetent. 12. In reaching that view, I have taken heed of the decision of the Full Court of the Industrial Court of South Australia in BHP v Stevenson (unreported) I.90/93, 2.7.93, and the various cases referred to in that decision. 13. However, that decision was with respect to the dismissal of an application for particulars. It was held that the learned Magistrate's ruling was an interlocutory judgment or order, and an appeal against it was, therefore, held to be competent. The decision is, of course, not binding on me, sitting in this Court, and in any event, the circumstances which preceded the making of the order appealed from in that case may be distinguished. 14. In the result, it appears to me that it would be wrong to grant an application for an injunction or otherwise to stay the hearing of the complaint in this case to enable what, in my view, would be an incompetent appeal to be brought. 15. I would, therefore, dismiss the application for leave to serve the summons for judicial review. 16. Before parting with the matter, I should say that Ms Barnett drew the Court's attention to sub-s(1a), which appears in s.40 of the Magistrates CourtAct. That sub-section results from a recent amendment. It reads: "An appeal does not, however, lie against an interlocutory judgment given in summary proceedings." 17. S.40 deals with rights of appeal in civil matters in the Magistrates Court. The words "summary proceedings" would seem to be inapt in that context. She contended that the sub-section was clearly intended to be a sub-section to s.42 and not s.40. She made the bold submission that I should read it accordingly. 18. It is, however, not open to this Court, by some judicial process, to amend the words of the statute. If the sub-section has been given a wrong home, it would be appropriate for the Act to be amended to set the position right. It is not open to me to grasp the pen of the Parliamentary draftsman. 19. The matter should perhaps, however, be referred to the authorities for appropriate attention in the event that Ms Barnett's submission does identify some miscarriage of the legislative process. 20. For these reasons the application for leave to serve the proceedings is refused. 21. I make it clear that this includes the application for an injunction, as to which if it had not proceeded by way of summons for judicial review, no leave to serve it would have been required. In my opinion, that application should not be allowed to proceed for the same reasons, if it is capable of being considered disjunctively from the rest of the application. 22. There is no order as to costs.