Step v Stokes - [2008] NTCA 11

Step v Stokes [2008] NTCA 11

PARTIES: VÁCLAV STEP

v
VICKI B STOKES

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP 10 of 2008 (20618554)
DELIVERED:  3 November 2008
HEARING DATES:  3 November 2008
JUDGMENT OF:  MILDREN, RILEY & SOUTHWOOD JJ
APPEALED FROM:  ANGEL J, 20 May 2008
CATCHWORDS:

APPEAL – Application for extension of time – applicant sought leave to appeal from Magistrate’s ruling during Local Court trial – application for leave to appeal to Supreme Court dismissed – Local Court Act s 19(3) whether ruling a judgment or order – whether appeal to Supreme Court competent – appeal to Court of Appeal filed out of time – no prospects of success – application refused
Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; applied
Duke Group Ltd (In Liq) v Arthur Young (1990) 54 SASR 511; Johnston v Nationwide News Pty Ltd and Anor (2005) 62 NSWLR 309; The Commonwealth v Mullane (1961) 106 CLR 166, referred to
REPRESENTATION:
Counsel:
Appellant:Self represented
Respondent:  I Morris
Solicitors:
Appellant:Self represented
Respondent:  Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:  Sou0813
Number of pages:  6

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Step v Stokes [2008] NTCA 11

No. AP 10 of 2008 (20618554)
BETWEEN:

STEP, Václav

Appellant

AND:

STOKES, Vicki B

Respondent

CORAM: MILDREN, RILEY & SOUTHWOOD JJ
REASONS FOR JUDGMENT
(Delivered 3 November 2008)
MILDREN J:

First, I will ask Southwood J to deliver his judgment.
SOUTHWOOD J:
Introduction
This is an application for an extension of time within which to appeal from a decision of Angel J made on 20 May 2008. His Honour dismissed Mr Step’s application for leave to appeal from a ruling of the Local Court refusing to allow Mr Step to reopen his case in proceeding number 20618554 which is part heard in the Local Court.
The principal issue in the application before this Court is whether, under s 19(3) of the Local Court Act, Mr Step has a right to appeal to the Supreme Court from such a ruling of the Local Court. In my opinion, he does not and the application for an extension of time should be dismissed. A ruling refusing to allow a party to a civil proceeding to reopen his or her case is not an order within the meaning of s 19(3) of the Local Court Act.
History of the proceeding
Mr Step is the plaintiff in Local Court proceeding No 20618554. Ms Stokes is the defendant. The proceeding was commenced on 21 July 2006. In the amended statement of claim filed in the Local Court on 23 November 2007, Mr Step claims damages for misfeasance in public office and defamation which are the torts said to have been committed by Ms Stokes. Mr Step’s claim arises as a result of Ms Stoke’s alleged refusal to allow Mr Step to be enrolled within the Northern Territory Open Education Centre in the second semester of 2003 and the first semester of 2004. At all material times, Ms Stokes was the principal of the Northern Territory Open Education Centre.
Before commencing the above proceedings in the Local Court, Mr Step had made a complaint to the Anti Discrimination Commissioner about Ms Stokes’ refusal to allow him to be enrolled in the Northern Territory Open Education Centre. During that process Mr Craig Drury, the Director of Legal Services for the Department of Employment, Education and Training, wrote a letter on behalf of Ms Stokes to Ms Terry Lisson who was the delegate of the Anti Discrimination Commissioner. The letter is said to contain statements about why Ms Stokes refused to enrol Mr Step.
Mr Step’s substantive proceeding in the Local Court was heard by Ms Blokland CM on 10 December 2007 to 13 December 2007. Mr Step was self represented during the hearing in the Local Court. Mr Morris appeared for Ms Stokes. The matter was not finalised by 13 December 2007 and it was adjourned part heard to 21 February 2008. The matter continued to be heard by Ms Blokland CM, on 21, 22 and 28 February 2008 when the matter was adjourned pending the outcome of Mr Step’s application for leave to appeal to the Supreme Court.
During the hearing before Ms Blokland CM, between 10 and 13 December 2007, Mr Step attempted to tender Mr Drury’s letter to Ms Lisson. Mr Morris objected to the tender of the letter on the ground that the letter had not been authenticated. Mr Morris’s objection was upheld by Ms Blokland CM. Her Honour ruled that the letter had to be formally authenticated and proved.
On 13 December 2007, Mr Step closed his case without authenticating or proving the letter from Mr Drury to Ms Lisson. Between 13 December 2007 and 21 February 2008, Mr Step issued summonses to give evidence to various witnesses so that he would be able to call those witnesses in an attempt to authenticate and prove the letter from Mr Drury to Ms Lisson.
On 21 February 2008, Mr Step applied to reopen his case so that he could call evidence to authenticate the letter from Mr Drury and tender that letter in evidence. Mr Step’s application to reopen was refused by Ms Blokland CM.
On 27 February 2008, Mr Step filed an application in the Supreme Court seeking leave to appeal Ms Blokland’s ruling. On 20 May 2008, Angel J dismissed Mr Step’s application.
Section 19(3) of the Local Court Act
Section 19(3) of the Local Court Act states as follows:
A party to a proceeding may, within 14 days after the day on which the order complained of was made, appeal to the Supreme Court from an order of the Court, (other than a final order) in that proceeding, with the leave of the Supreme Court.
Not all rulings or decisions of the Local Court are orders within the meaning of s 19(3) of the Local Court Act. Orders are to be distinguished from incidental rulings given in the course of a proceeding in the Local Court. In Legal Practitioners Complaints Committee v A Practitioner[1] King CJ stated that:
There is no completely satisfying definition of either “judgment” or “order” and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders. Fortunately it is unnecessary for present purposes to make such a distinction. If the decision falls within either description it is appealable.
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.
The above decision was followed in Duke Group Ltd (In Liq) v Arthur Young[2] and in Johnston v Nationwide News Pty Ltd and Anor[3] and in numerous other cases. See also The Commonwealth v Mullane[4]. The purpose of such a distinction is to ensure that the course of a trial is not interrupted by applications about matters incidental to the conduct of the trial.
In my opinion, the ruling of the learned Chief Magistrate refusing to allow Mr Step to reopen his case was an incidental ruling given in the course of the hearing of Mr Step’s claim and it was not made the subject of an order. The ruling was expressed to be a ruling given during the course of the hearing in the Local Court. The ruling was not an order within s 19(3) of the Local Court Act.
In the circumstances, Mr Step’s application for leave to appeal to the Supreme Court was rightly dismissed by Angel J, and as any appeal is without any prospects of success the application for an extension of time in which to appeal must also be dismissed. Further, in my opinion the learned Chief Magistrate should not have adjourned the hearing of the proceeding before her. A trial should not be interrupted by such applications as this.
Orders
I would make the following order:
The application for an extension of time in which to appeal is dismissed.
MILDREN J:
I agree with Southwood J for the reasons which he has given. I have nothing further to add.
RILEY J:
I also agree and have nothing further to add.
MILDREN J:
The order of the court is that the application for an extension of time is dismissed.

[1] (1987) 46 SASR 126 at 127

[2] (1990) 54 SASR 511

[3] (2005) 62 NSWLR 309

[4] (1961) 106 CLR 166 at 169