TYTLER v Corbett - [2005] SASC 27

Supreme Court of South Australia
(Civil: Application)
TYTLER v CORBETT
Reasons for Decision of The Honourable Justice Bleby (ex tempore)
21 January 2005
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appeal to Supreme Court from decision of Equal Opportunity Tribunal - Whether appeal lies to Full Court or single judge - s 98 Equal Opportunity Act 1984, r 96.04 Supreme Court Rules - Question not yet determined - Notice of appeal not filed within time - Power of Court to extend time - s 48 Limitation of Actions Act 1936 - Whether single judge has power to grant extension - Only Full Court has power to hear - Single judge cannot grant extension of time.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA
WAIVER OF FILING FEES
Appeal to Full Court - Application for waiver of fees on lodging notice of appeal - s 130(2) Supreme Court Act 1935 - Notice of appeal not filed within time - Whether Master should hear application before extension of time obtained - Necessity for waiver of fees application to be determined first - Matters relevant to hearing of application for extension of time - Application for waiver of fees remitted for determination by Master
Equal Opportunity Act 1984 (SA) s 98; District Court Rules (SA) r 96; Supreme Court Rules (SA) r 95, r 97; Constitution Act 1934 (SA) s 86; Workers Compensation Act 1971 (SA) (repealed) s 47; Freedom of Information Act 1991 (SA) s 45; Local Government Act 1934 (SA) (repealed) s 65ZX; Limitation of Actions Act 1936 (SA) s 48; Supreme Court Act 1935 (SA) s 130(2), referred to.
Dagenham Nominees Pty Ltd v Shanks [2003] SASC 139; Wride v Werner [2004] SASC 211, applied.
Sandhurst Trustees Ltd v Gallerie Investments Pty Ltd [2001] SASC 373; Angus Fire Armour v Collector of Customs (1987) 17 FCR 473, considered.

TYTLER v CORBETT
[2005] SASC 27

BLEBY J (ex tempore) This matter comes before me as an application for extension of time within which to institute an appeal against a decision of the Equal Opportunity Tribunal. The appellant is not represented by a legal practitioner. At present, he is an inmate of the Port Lincoln Gaol. He has some obvious difficulties in being able to attend personally to various matters associated with his appeal. So far, his appeal appears to have been attended by a number of procedural deficiencies and difficulties, not all of his own making. However, for reasons which will become apparent, it is not possible for his application for extension of time to be dealt with at this time.
By whom the appeal is to be heard
The Equal Opportunity Tribunal is constituted under Part 2 Division 2 of the Equal Opportunity Act 1984. A right of appeal against a decision or order of the Tribunal is conferred by s 98 of the Equal Opportunity Act. The appeal lies to “the Supreme Court”. The Act does not specify whether the appeal is to a Full Court or to a single judge.
Section 98(2) of the Equal Opportunity Act provides that the appeal must be “instituted” within one month of the making of the decision or order appealed against. Whatever else that may involve, it requires the filing of a notice of appeal in the Supreme Court within that time. That was not done, hence the present application.
There are no rules of the Supreme Court dealing specifically with appeals from decisions of the Equal Opportunity Tribunal, such as there are in relation to appeals from the District Court (Rule 96A), the Environment, Resources and Development Court (Rule 96AA), the Magistrates Court (Rules 96B and 96C) and the Youth Court (Rule 96D). Rule 96 makes provision for appeals under s 86 of the Constitution Act 1934, s 47 of the Workers Compensation Act 1971 (now repealed), s 45 Freedom of Information Act 1991 and s 65ZX Local Government Act 1934 (now repealed).
Rule 96.04 provides:
“Where any Act:
(a)vests jurisdiction in a Tribunal over which a Judge of the District Court presides; and
(b)provides a right of appeal from a decision of that Tribunal to the Supreme Court; and
(c)does not specify whether the right of appeal is to the Full Court or to a single Judge,
the appeal shall be to the Full Court unless a Judge, on an application made within seven days of the filing and service of the notice of appeal by any party to the appeal, decides that the subject matter of the appeal is of such a nature as not to warrant the attention of the Full Court in which case the appeal shall be heard and determined by a single Judge.”
The Equal Opportunity Tribunal was presided over by a Judge of the District Court. Rule 96.04 would therefore require the appeal to be heard by the Full Court unless a Judge, on application made within the required time, decided that the appeal is of such a nature as not to warrant the attention of the Full Court.
From a letter to the Supreme Court registry accompanying his present application, the appellant indicates that he does not know the address of the respondent, Ms Corbett. The notice of appeal lodged for filing purports to name only Ms Corbett as the respondent but foreshadows the possibility that another party to the proceedings, GSL Custodial Services, may need to be joined. I infer that neither potential respondents to the appeal have been served with the notice of appeal. In any event, for reasons which appear below, the notice of appeal has not yet been filed, so the time for making an application under r 96.04 has not yet commenced. It is an application which can be made either by the appellant or by any of the respondents. Until the time for making such an application has expired, and if an application is made, until it has been determined, it is not possible to tell whether the appeal will be to the Full Court or to a single judge. It is plainly an application which, if made, would need to be made on notice to every other party to the intended appeal.
Full Court appeals – The power to extend time
In this case the time for instituting an appeal is specified by s 98(2) of the Equal Opportunity Act. An appeal must be instituted within one month of the making of the decision or order appealed against.
Rule 95.02 of the Supreme Court Rules relevantly provides:
“Unless any enactment otherwise provides:
(a)an appeal as of right must be instituted within fourteen days after the decision, judgment, order or award appealed from, or within such other time as the Court may fix.”
In this case, an enactment “otherwise provides”. I consider that the power to extend the time provided by r 95.02 only applies to the time limit specified in r 95.02 itself. The time prescribed by an Act of Parliament cannot be extended by a rule of the Court. The power to extend time in this case must be found elsewhere. In my opinion, it is to be found in s 48 of the Limitation of Actions Act 1936. Subsections (1) and (2) of that section provide:
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for –
(a)     instituting an action; or
(b)    doing any act, or taking any step in an action; or
(c)    doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)A court may exercise the powers conferred by this section in respect of any action that –
(a)     the court has jurisdiction to entertain; or
(b)    the court would, if the action were not out of time, have jurisdiction to entertain.”
Other subsections which follow prescribe matters governing the exercise of the Court’s discretion to extend time. The word “action” used in subsections (1) and (2) is defined in s 3 of the Act as including legal proceedings of all kinds.
The implication from those subsections is that it is the Court which has jurisdiction to hear the action which has power to extend the time. In the case of an appeal to the Full Court of the Supreme Court, that will be the Full Court, and not a single judge.
In Sandhurst Trustees Ltd v Gallerie Investments Pty Ltd [2001] SASC 373 the Full Court expressed doubt as to whether a single judge had power to extend the time within which to appeal to the Full Court under r 95.02. The Court expressed the view that the reference to “the Court” in that rule probably meant the Full Court, although in the circumstances it was not necessary to decide the point. Subsequently, Besanko J has held in Dagenham Nominees Pty Ltd v Shanks [2003] SASC 139 that “the Court” in that rule means the Full Court and that he had no power to extend time in respect of an appeal to the Full Court. White J in Wride v Werner [2004] SASC 211 has also reached the same conclusion. I agree with the reasoning in those decisions, that an extension of time under r 95.02 can only be granted by the Full Court.
By parity of reasoning, I consider that the same applies to s 48 of the Limitation of Actions Act. This view is reinforced by the reference in subsection (2) to the action being one which the Court has jurisdiction to entertain. If an appeal is to the Full Court, a single judge does not have jurisdiction to entertain the appeal. Accordingly, a single judge has no power to extend time for instituting an appeal when the appeal lies to the Full Court of the Supreme Court.
Until the question as to who is to hear the appeal is resolved, whether that be by default or by order of a judge, it is not possible to determine by whom the application for extension of time should be heard. If the appeal is before a single judge it must proceed in accordance with r 97 of the Supreme Court Rules, and it will be a single judge who can determine whether an extension of time should be granted in exercise of the power conferred by r 3.04(d) of the Supreme Court Rules. If the appeal is to be heard by the Full Court it proceeds in accordance with the requirements of r 95 of the Supreme Court Rules and the application will have to be heard by the Full Court.
I realise that this gives rise to certain anomalies. As has been pointed out in some of the decisions to which I have referred, r 95.08 of the Supreme Court Rules confers power on the Full Court or a judge to dismiss an appeal to the Full Court as incompetent. Such an application would not normally be dealt with by a single judge where the appeal has not been properly instituted, and in the case of an appeal instituted out of time, that cannot be determined until the matter has been to the Full Court. For these reasons it would be more convenient if a single Judge were invested with the power to grant an extension of time in respect of appeals to the Full Court. That could be done, in the case of r 95.02, by an amendment to the Rules of Court. In the case of the Limitation of Actions Act it would require an act of Parliament. However, under present circumstances I cannot order an extension of time.
I should add that the Supreme Court Rules presently appear to provide for different methods of instituting an appeal, depending upon whether it is an appeal to the Full Court or to a single judge. Rule 95.01 provides that the appeal is instituted “by filing and serving” a notice of appeal. Rule 97.03, in the case of an appeal to a single judge, provides that the appeal is instituted merely by filing a notice of appeal. In the instant case this may well give rise to another anomaly regarding when the appeal was instituted, depending on the resolution of the question as to whether the appeal should be heard by a single judge or the Full Court. I can only suggest to the appellant that if he has not arranged for service of the notice of appeal on all parties who were represented before the Equal Opportunity Tribunal, then he should do so as soon as possible after his notice of appeal is filed. He should then decide whether he wants to make an application under r 96.04 or he should allow sufficient time within which one of the potential respondents might make such an application. Before then it cannot be determined whether his application for an extension of time is to be heard by a single judge or by the Full Court.
Other procedural difficulties
The appellant purported to institute the appeal by enclosing a notice of appeal with a letter to the Registrar of the District Court who also administers the Equal Opportunity Tribunal. The letter concerned another matter and asked that the notice of appeal be forwarded to the Supreme Court Registrar. That occurred, and a copy of the letter and, I infer, the notice of appeal, was received by the Supreme Court Registrar on 13 December 2004. In response, the appellant was advised that his right of appeal lay to the Full Court and not to a single judge of the Court as specified in his notice of appeal. He was told that he would need to amend the notice and return it to the Court. Given the provisions of r 96.04, that advice was misleading.
The letter also advised the appellant that he should file a separate notice for specific directions and supporting affidavit in support of his application for an extension of time “as this could be heard by a single judge prior to you preparing appeal books and completing other appeals procedures”. That was also misleading advice, notwithstanding the desirability of a single judge being able to grant an extension of time.
He was also informed of the filing fee needed to lodge the notice of appeal and was informed that the notice would not be filed until the fee is paid or waived by the Court. The notice of appeal was returned to him together with information about how to apply for a waiver of fees.
The notice of appeal was duly returned to the registry with the amendments suggested in the letter together with an application for waiver of fees.
The regulations prescribing the fees payable on the filing of various Court documents prescribe the fees to be paid “on filing” the particular document. The registry therefore cannot accept a document for filing unless the appropriate fee is paid, unless appropriate arrangements with a solicitor are in place for the payment of the fee or unless and until an order is made for the remission or reduction of the fee pursuant to s 130(2) of the Supreme Court Act. See also Angus Fire Armour v Collector of Customs (1987) 17 FCR 473.
Section 130(2), Supreme Court Act provides:
“(2)The court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason.”
When the notice of appeal was returned to the registry with an application for remission of fees, the application was referred to a Master who endorsed the request from the registry:
“Any waiver of fees is dependent on an extension of time to appeal being obtained. The application for waiver should be resubmitted after any extension has been obtained …”.
The application for waiver of fees has therefore not been dealt with and the notice of appeal has not been filed. The consequence is that the appeal has not been instituted. The notice of appeal contains, quite properly, an application for extension of time and specifies the grounds on which the application is made. Without the filing of the notice of appeal there can be no institution of the appeal, the date of which may well be relevant to determining whether an extension of time should be granted. Without the filing of the notice of appeal no notice can be taken of the grounds of appeal, which will also be relevant to an extension of time.
In my opinion there is no warrant for the view that an application for waiver of fees cannot be dealt with until an extension of time has been obtained. The only relevant consideration on application for waiver of fees is “the poverty of the party by whom the fees is payable or for any other proper reason”: s 130(2) Supreme Court Act 1935. It is only after the fee has been either waived or paid that the notice of appeal can be filed and the application for extension of time proceed. In the case of an appeal to the Full Court, the filing of the notice of appeal by itself does not mean that the appeal has been properly instituted. It is not instituted until service has been effected. An ex parte application for waiver of fees cannot be dependent upon service on other parties of the notice of appeal.
Until the notice of appeal is filed there is nothing on the file of which the Court can take notice in connection with the application for extension of time. In my view the application for waiver of fees remains to be determined by the Master. If the fee is waived the notice of appeal can be filed. If it is not, the applicant will need to pay the fee and the notice of appeal can be filed. In either event it must then be served forthwith on all parties directly affected by the appeal (r 95.01(2)(a) and r 97.05(a)) and must be served on or lodged with the Registrar of the Equal Opportunity Tribunal (r 95.01(2)(b) and r 97.05(b)). The latter process is necessary in order to ensure that the relevant file of the Tribunal is then transmitted to the Supreme Court in accordance with the requirements of r 95.01(2A) or r 97.06. Access to that file may well be necessary in order for the Court to determine an application for extension of time, for an application under r 96.04 for the appeal to be heard by a single judge, or both, and for the purpose of determining what should be included in the appeal books if the matter is to be heard by the Full Court.
For these reasons it is not yet possible for a single Judge to entertain the application for an extension of time within which to institute the appeal. Depending on what happens from now on it may never be appropriate for a single judge to hear the application. At this stage I merely refrain from hearing it.
Of my own motion I remit the application for waiver of fees for determination by a Master.
The formal orders will be:
1.The Court as presently constituted declines to hear the application for an extension of time within which to institute the appeal.
2.The application for remission of fees is referred to a Master for determination.
3.No order as to costs.