State of Victoria (Victoria Police) v McCombe

[2000] VSC 109

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 4221 of 2000

STATE OF VICTORIA (VICTORIA POLICE)	Appellant
v.
DAVID McCOMBE	Respondent

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 MARCH 2000
DATE OF JUDGMENT:	24 MARCH 2000
CASE MAY BE CITED AS:	STATE OF VICTORIA (VICTORIA POLICE) v. McCOMBE
MEDIUM NEUTRAL CITATION:	[2000] VSC 109

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CATCHWORDS: Practice and Procedure – Appeal from decision of Magistrates' Court – Application for leave to proceed out of time – Exceptional circumstances – Magistrates' Court Act 1989, s.109.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. A. Sandbach	Mills Oakley
For the Respondent	Mr. P. Mischusen	Holding Redlich

HIS HONOUR:

1. This is an appeal by the appellant, the State of Victoria (Victoria Police), from the order of Master Wheeler made on 15 February 2000 whereby the Master dismissed the appellant's application for leave under s.109(4) of the Magistrates' Court Act 1989 to appeal from an order of the Magistrates' Court of Victoria constituted by Magistrate Jones, made on 22 December 1999.

1. The following are the sub-sections of s.109 of the Magistrates' Court Act relevant for present purposes:

"Section 109:

(1)A party to a civil proceeding in the Court may appeal to the Supreme Court on a question of law from a final Order of the Court in that proceeding;

(2)An appeal under sub-s.1 (a) must be instituted not later than 30 days after the day on which the Order complained of was made;

(4)An appeal instituted after the end of the period period referred to in sub-s.2(a) is deemed to be an application for leave to appeal under sub-s.1; 

(5)The Supreme Court may grant leave under sub-s.(4) and an appellant may proceed with an appeal if the Supreme Court –

(a)is of the opinion that the failure to institute the appeal within the period referred to in sub-s.2 was due to exceptional circumstances and

(b)is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay."

1. Having regard to the fact that the order sought to be appealed from was made on 2 December 1999 it was incumbent upon the appellant to institute its appeal on or before 2 January 2000.  The appellant did not, but filed its originating motion in the Court on 3 February 2000 whereby it sought leave to proceed.

1. The reason for its failure in that regard appears in the affidavit of Peter Neville White sworn 3 February 2000.

1. The relevant passage in the affidavit reads:

"On 23 December 1999, I advised the Plaintiff of the outcome of the proceeding and receive instructions to advise on the prospect of a successful appeal from the decision of Magistrate Jones. During the course of my oral and written advice to the Plaintiff, I considered the time period during which an appeal might be commenced. I ascertained that s.109 of the Magistrates' Court Act provided that an appeal must be instituted no later than 30 days after the date upon which the Order of Magistrate Jones was made. I then considered, erroneously, that Order 3.04 of the Rules of this Honourable Court had application insofar as the calculation of the period of time within which an appeal might be instituted did not include the period between 24 December 1999 and 9 January 2000."

1. Mr White then deposes to the fact that he was informed by counsel that Rule 3.04 did not apply to the statutory time prescribed by s.109.

1. Rule 3.04 reads: 

"(1)In calculating the time fixed by these Rules      or by any Order fixing extending or abridging the time period from 24 December to 9 January next the following shall be excluded unless the Court otherwise orders."

1. The Master's reasons for dismissing the appellant's application appear alongside the heading "other matters" in the Master's order.  They read: 

"There are no exceptional circumstances which would justify allowing the appeal to be instituted out of time (see O'Callaghan v. Storer [1997] No.7402/1997 per Beach, J of 23 June 1998)."

1. In O'Callaghan's case counsel had made an error in counting the 30 day period.

1. At page three of my reasons for judgment I said: 

"The exceptional circumstances relied on by the Plaintiff in support of the application were that in calculating the 30 day period from 19 August 1997 the plaintiff's counsel had made a miscalculation in the matter believing that the thirtieth day was 19 September when, in fact, it was 18 September.  Not surprisingly Master Evans held that a miscalculation of that nature did not constitute a special circumstance and dismissed the proceeding.  Hence the appeal to a Judge of the Court.  In my opinion the appeal must fail.  Clearly a miscalculation of a period of time by counsel for a party cannot constitute an exceptional circumstance." 

1. "Exceptional" is a word in common use in the English language.  As counsel for the appellant pointed out in his written outline of submissions, it is defined in the Oxford English Dictionary as meaning "of the nature of or forming an exception; out of the ordinary course, unusual, special".

1. Counsel for the appellant referred me to a number of decisions during the course of discussion, some of them dealing with Rules of Court, that is a failure to comply with Rules of Court such as that of the Full Court of the Federal Court in Jess v. Scott & Ors (1986) 70 A.L.R. 185, or the effect of self-executing orders such as the decision of the Appeal Division of this Court in Cull v. Stewart & Anor (unreported) 22 October 1991.  But I think that totally different considerations apply in those cases.

1. Insofar as Rules of Court are concerned, courts have historically taken a far more flexible approach to breaches of the Rules and will invariably relieve a party from non-compliance, if by doing so it can avoid injustice to that party.  Insofar as self-executing orders are concerned, the courts are loath to deprive a litigant of his opportunity to have his day in court by reason of the neglect of his legal advisers and will ameliorate or nullify the effect of such orders in appropriate cases.  But this is not a mere breach of the Rules or the failure to comply with a self-executing order; the appellant has had its day in court and now it wishes to appeal.  In such cases the legislature has said yes, you may appeal, but you must institute your appeal within 30 days, and if you do not you cannot proceed with your appeal unless you can demonstrate that your failure to institute your appeal within time was due to exceptional circumstances.

1. I do not think that an error by a member of the legal profession of the kind made in this case can be said to be something special, out of the ordinary course or in the nature of an exception.

1. In this Court one sees mistakes made by members of the profession concerning time limits on an almost daily basis.  If such mistakes were to be termed "exceptional" it would rob that word of its true meaning, namely, something special, out of the ordinary or in the nature of an exception.

1. In my view the appeal in this matter must be dismissed.

1. I order that the appeal be dismissed with costs to be taxed and paid by the appellant to the respondent.

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