| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TUMA HOLDINGS PTY LTD -v- SILVERBAY ENTERPRISES PTY LTD [2011] WADC 181 CORAM : SWEENEY DCJ HEARD : 24 OCTOBER 2011 DELIVERED : 24 OCTOBER 2011 FILE NO/S : APP 26 of 2011 BETWEEN : TUMA HOLDINGS PTY LTD Appellant
AND
SILVERBAY ENTERPRISES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE YOUNG File No : MI 463 of 2009 Catchwords: Appeal out of time - Section 40 Magistrates Court (Civil Proceedings) Act 2004 - District Court Rules 2005 - No power to extend time
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Legislation: District Court Rules 2005 r 51, r 51A
Magistrates Court (Civil Proceedings) Act 2004 s 40 Result: Application for extension of time within which to appeal dismissed Representation: Counsel:
Appellant : Mr S Watters
Respondent : Mr A Prentice
Solicitors:
Appellant : George Papamihail
Respondent : Mossensons
Case(s) referred to in judgment(s):
Defendi v Chartstar Pty Ltd [2011] WADC 42
Grossetti v Grossetti [2011] WADC 78
Lau v Chua [2009] WADC 172
McKeon v Knapton [2009] WADC 170
Wilson v Westpac Banking Corporation [2011] WADC 13
Wise v Proprietors of Strata Plan 21513 [2008] WADC 80
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1 SWEENEY DCJ: [This judgment was delivered extemporaneously on 24 October 2011 and has been edited from the transcript.]
2 On 10 December 2010, following a trial in the Magistrates Court before his Honour Mr Young, his Honour gave judgment for the plaintiff in the sum of $50,000 damages for breach of contract. Against that decision the appellant appeals and filed its notice of appeal on 30 March 2011, some three months out of time. 3 The appellant also filed a chamber summons dated 30 March 2011 seeking an extension of time within which to appeal. Stavrianou DCJ drew the parties' attention to the decision of Scott DCJ in Grossetti v Grossetti [2011] WADC 78, in which his Honour held there was no power for this court to extend time within which to appeal from the Magistrates Court. It is submitted in written submissions that the decision is binding upon me. It is not binding upon me in fact, being a decision of a single judge of this court. 4 There are two conflicting lines of decisions in this area. The first decision that I am aware of was a decision of Keen DCJ in Wise & Anor v Proprietors of Strata Plan 21513 [2008] WADC 80, in which his Honour decided there was power to extend time in which to appeal from a decision from the Magistrates Court. The next decision was my own in McKeon v Knapton [2009] WADC 170, in which I respectfully declined to follow the decision in Wise. 5 My decision was not followed by Eaton DCJ in Lau v Chua [2009] WADC 172. Since then however it has been followed by Braddock DCJ in Wilson v Westpac Banking Corporation [2011] WADC 13 and by Wager DCJ in Defendi v Chartstar Pty Ltd [2011] WADC 42 and further decisions by her Honour. Grossetti v Grossetti, the decision of Scott DCJ, is another decision consistent with that view. 6 So apart from certain dicta which I will return to, I was unlikely to disagree with Scott DCJ's decision, given the view I had taken in McKeon v Knapton. And my view remains the same, notwithstanding recent amendments to the District Court Rules 2005. 7 Section 40 Magistrates Court (Civil Proceedings) Act 2004 confers the right of appeal against a judgment of the Magistrates Court on this Court. It provides: 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 – (Page 4)
8 The appeal must therefore be conducted according to the District Court Rules. Its commencement however is dictated by the Act. 9 At the time I decided McKeon v Knapton, r 51(4) of the District Court Rules provided: (4) A notice of appeal must be filed and served within 21 days after the date of the appealable decision. 10 In that decision I gave detailed reasons as to why I concluded that the time limit prescribed by s 40 Magistrates Court (Civil Proceedings) Act was mandatory and why O 3 r 5 of the Rules of the Supreme Court 1971, which empowers the court to extend the period within which a person is required by 'these Rules, or by any judgment, order, or direction, to do any act in any proceedings', did not give power to extend time. 11 At [24] and [25] I stated: The flaw in the argument, however, and this really is the nub of the matter, is that the mandatory 21 days time limit prescribed by the Magistrates Court (Civil Proceedings) Act is not just a period within which a person is required or authorised by the Rules of the Supreme Court, or for that matter the District Court Rules by incorporation, or by any judgment, order, or direction, to do any act in any proceedings. It is the time limit set in the primary legislation creating the right of appeal. Order 3 does not empower the court to extend a period within which a person is required by an Act to do something. And the Act requires the appellant to commence proceedings within 21 days. If the appeal is a nullity, having been filed out of time, there are no proceedings. The Magistrates Court (Civil Proceedings) Act provides only that the appeal is to be conducted in accordance with rules of court. The District Court rule providing the manner in which the appeal may be commenced does not take precedence over the empowering section itself (Page 5)
which provides the right of appeal. Nor does it in fact give power to extend the time. 12 My view on that has not changed. I do not accept the submission made to me during this hearing that 'direction' in O 3 r 5 encompasses a time limit set by a statute. 13 If the Act creating the right of appeal is silent as to when that appeal must be commenced, then the time limit is that set by the rules of court. But if the enabling Act has set a mandatory time limit, then the rules of court as to the commencement of the appeal have no work to do and cannot supersede the Act. 14 The District Court Rules have changed since I gave the decision. Effective 17 June 2011, r 51A has now been inserted: 51A. Time for appealing Unless another written law provides otherwise, an appeal to the Court against an appealable decision must be commenced within 21 days after the date of the decision. 15 Rule 51A clearly does not alter the position. What it expressly recognises is that the enabling Act which creates the right of appeal takes precedence over any rule of court. What r 51A speaks to is the setting of a limit where the enabling Act is silent. If the enabling Act does set a time limit, but also provides a power in the court to enlarge any time it has prescribed in which to appeal, that would take precedence over the mandatory 21-day time limit contained in the rules. Rule 51A does not empower the court to enlarge time. 16 Nor does r 57, which sets out the court's numerous powers on appeal and is also expressed to be subject to the written law that provides for the appeal to be made to the court. 17 Rule 51 has also been amended: 51. Appeal, commencement of (Page 6)
the appellant must file these documents … 18 It then sets out forms and documents which must accompany the notice of appeal. This rule does not contain the court's power to enlarge time. It merely prescribes the documents which must be filed to allow a party to seek an extension of time. The power to extend time is to be found elsewhere. If, for example, a party wishes to appeal a decision from the Criminal Injuries Assessor, outside 21 days, he may do so, because s 55 of the Criminal Injuries Compensation Act 1985 which creates the right of appeal to the District Court, provides: 55. Appeal lies to the District Court … (3) The appeal must be commenced within 21 days after the date of the decision. (4) If it is just to do so, the District Court may allow an appeal to be commenced after the 21 days, and may do so even if the period has expired. (5) The appeal must be conducted in accordance with the rules of court made by the District Court. 19 In filing such an appeal out of time, a party must comply with r 51 of the District Court Rules in filing the prescribed documents to seek an extension of time. 20 But I do not consider that r 51 of itself provides this court with power to extend the mandatory 21-day time limit set by the Magistrates Court (Civil Proceedings) Act. At first blush, the decision of McKeon v Knapton might be seen to imply that amending the District Court Rules would give the court power to extend time, but I pointed out at [38] that: In any event, any rules of court are subject to the statute creating the right of appeal, which gives no power to this court to enlarge time. 21 And at [36] I also said: Given the various statutes which I have quoted above in which parliament has provided the court with an express power to enlarge time, it would have been an easy matter for parliament to expressly provide that power to this court in the Magistrates Court (Civil Proceedings) Act. It chose not to do so. (Page 7)
22 It follows that I respectfully disagree with Scott DCJ's remarks in Grossetti v Grossetti at [45] where his Honour stated: In the event that the provision of the DCR included or incorporated a rule empowering this court to extend the time limit within which an act was required to be done, then notwithstanding the mandatory provisions of s 40(3)(a) of the MCCP Act, a rule in those terms would be likely to empower the court to exercise a discretion as to whether any time limit might be extended (Electric Light & Power Supply Corporation Pty Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554, 599). 23 I do not consider that the amendments to the rules have had that effect. The comment was of course dicta and hypothetical, made without the benefit of considering specific amendments. 24 But in my view, it is not a change of rules by this court which will achieve that power in the face of a mandatory time limit set by Parliament. Had Parliament been silent on the time limit, this court could prescribe a time limit with power to enlarge that time. The amended rules do not in fact purport to contain such a power, but if they did, my view is that the enabling Act takes precedence. 25 Accordingly, I remain of the view that this court has no power to extend the time within which to appeal set down by s 40 of the Magistrates Court (Civil Proceedings) Act. 26 In those circumstances, it is not necessary for me to decide whether the amendments to the District Court Rules have retrospective effect.
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