Appellant v Respondent

1 This appeal arises out of the termination of the employment of the appellant, Mr Cowdery, by the respondent ("the Body Shop"). Mr Cowdery had declined to accept the Body Shop's requirement that he move the location of his employment from Mulgrave to South Melbourne.

2 Mr Cowdery contended that his position had been made redundant and brought proceedings against the Body Shop in the Magistrates' Court seeking redundancy pay. He relied on two contractual bases (implied term or express oral term) and/or statutory entitlements under the Fair Work Act 2009. Mr Cowdery also sought in the Magistrates' Court the imposition of a penalty on the Body Shop under the Fair Work Act, interest and costs.

3 Mr Cowdery failed in the Magistrates' Court in respect of both his contractual claims, and also in respect of his claim for a penalty to be imposed. He succeeded in respect of a statutory entitlement under the Fair Work Act.

4 Mr Cowdery by this appeal wishes to challenge the dismissals by the Magistrate of his contractual claims and his claim that a penalty should be imposed. His notice of appeal filed 18 October 2013 contains seven questions of law directed to the dismissal of his contractual claims (questions of law 1 to 7) and a further eleven questions of law directed to the dismissal of his claim for a penalty (questions of law 8 to 19 inclusive).

5 The Body Shop asserts that only the appeal against the dismissal of the claim for penalty is within time, and that leave to appeal out of time against the dismissal of the contractual claims should be refused.

6 Mr Cowdery disputes that the appeal in respect of the contractual claims is out of time, but, if it is, says that leave to appeal out of time should be granted.

7 The Body Shop also seeks that the appeal be summarily dismissed pursuant to r 58.10 (paragraph 8) of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules') because some or all of the questions of law are in fact questions of fact. That matter has not yet been argued. These reasons concern only the questions of time and leave to appeal out of time.

8 Mr Cowdery commenced his claim in the Magistrates' Court by Complaint and Statement of Claim filed 1 May 2012. The claim was defended and was heard before Magistrate Ginnane on 18 and 19 February 2013. On 2 May 2013 the Magistrate handed down a decision. The document embodying the decision is entitled "Reasons for Decision" and is dated 2 May 2013. It purports to deal with all the matters in the claim. Reasons are given for the dismissal of the contractual claims in paragraph 23 (in relation to an implied term) and paragraph 29 (in relation to the alleged oral term). Paragraphs 31-49 deal with Mr Cowdery's alternative claim for redundancy pay under the Fair Work Act, which the Magistrate upheld. The final paragraph, paragraph 50, reads as follows (emphasis added):

For the reasons stated, there will be an order on the claim for the defendant to pay the plaintiff the sum of 6 weeks of pay. I will leave the precise calculation of that sum to the parties as the evidence before me disclosed some variation, albeit minor, in the figures for annual salary of the plaintiff and relied upon for calculations. As the plaintiff advanced no submissions in support of the imposition of a penalty, I therefore order than otherwise for the relief granted the claim is dismissed. I will reserve to the parties liberty to apply within 14 days on notice to the Court and the other party in the event it is necessary to make application to otherwise dispose of the matter.

9 Although the italicised portion of paragraph 50 purports to make an order, no distinct order was issued dated 2 May 2013, and, as noted, the document is entitled "Reasons for Decision". The parties were excused from attendance on 2 May 2013, and so are unable to say what, if anything, was said in court that day. The document was faxed to them the next day. The Magistrates' Court case log for the proceeding[1] contains an entry dated 2/05/2013 which reads "Order/s made-open" and entries for the following day recording the sending of the "decision" by fax and mail to the solicitors for each party.

10 On 9 May 2013 the solicitor for Mr Cowdery rang the solicitor for the Body Shop and advised that Mr Cowdery wished to appeal to the Supreme Court. The affidavit of the solicitor for the Body Shop exhibits a telephone note of the discussions that followed, which I do not here set out as they may have been intended to be without prejudice. On 13 May 2013, the solicitors for the Body Shop wrote to the Magistrates' Court to request a hearing on costs, copying the solicitors for Mr Cowdery into that letter. The Body Shop subsequently filed and served proposed orders and an affidavit in support, seeking costs on an indemnity basis. Costs on that basis were sought because the amount ordered by Magistrate Ginnane was less favourable than previous offers that had been put.

11 The costs application was met by a letter dated 15 May 2013 from the solicitors for Mr Cowdery[2] relevantly stating as follows:

We have been instructed to appeal the decision to the Supreme Court of Victoria. The Notice of Appeal is being settled by Counsel.

We respectfully request that the hearing of any costs claim be delayed until the hearing and determination of the Appeal.

12 By letter dated 16 May 2013, the Body Shop notified the Magistrates' Court and Mr Cowdery that it did not agree to this request.[3] Nor did the Magistrates' Court. By letter of the same date, 16 May 2013, the Court advised that Magistrate Ginnane had directed that the proceeding be listed for mention "in regard to costs" in the week commencing 20 May 2013 "(i)n order for all matters to be concluded before His Honour, Magistrate Ginnane, within any period available for appeal".[4]

13 The solicitors for Mr Cowdery responded to the letter from the solicitors for the Body Shop the same day. In that letter,[5] those solicitors stated (emphasis added):

The issue is not merely about your client's costs but also about our client's costs, interest and penalty.

Our client is prepared to agree to a stay in the judgment pending an outcome of the Appeal because we appreciate that unless we agree to a stay in the judgment, your client will be bound to make payment notwithstanding the Appeal.

14 The letter gave notice of proposed orders that would be sought, if notwithstanding the suggestion of adjournment the relisting proceeded. Those proposed orders were as follows:

1. That the Defendant pay the Plaintiff the sum of $9,903.46 being 6 weeks' salary;
2. That the Defendant pay a penalty for breach(es) of the Fair Work Act pursuant to section 545(3) of the Fair Work Act.
3. That the Defendant pay interest on the amount of the judgment debt from the date that the termination of employment occurred until the date of payment of the award of the Court in the sum of $1,353.25.

4. That the defendant pay the plaintiff's costs.

15 The solicitors for Mr Cowdery responded to the Magistrates' Court letter of 16 May 2013 the next day, 17 May 2013,[6] advising that 23 May 2013 was their preferred date for relisting, and that:

As you are now aware, the party (sic) will address final orders including as to interest, the question of costs, and the calculation of a penalty. (emphasis added).

16 The proceeding was relisted on 23 May 2013. The Magistrate's reasons, dated 17 July 2013, record that on that day the solicitor for Mr Cowdery sought the imposition of a penalty, and counsel for the Body Shop opposed that course, submitting that:

The court had delivered its reasons and therefore the matter was concluded pending any appeal and that in effect I should not revisit the matter.[7]

17 The reasons of 17 July 2013 commence with this paragraph:

On 25 May 2013 the court published its reasons for decision in this proceeding. I granted the plaintiff relief in the form of a payment of 6 weeks but otherwise dismissed the claim. My reasons for decision included a reference to the absence of any submissions having been advanced for the imposition of a penalty that had comprised part of the plaintiff's claim.

18 There is no dispute that the reference to "25 May" is a typographical error, and should read "2 May".

19 The reasons then record that it had been the Magistrate's recollection in preparing the first reasons, dated 2 May 2013, that counsel for Mr Cowdery had told the court during the substantive hearing that the matter of penalty would not be pursued. The reasons of 17 July 2013 record that it was on that basis that the Magistrate had dismissed the matter of penalty in his 2 May 2013 reasons. The solicitor for Mr Cowdery having disputed the accuracy of this recollection, the Magistrate then checked the sound recording and acknowledged that no such submission had in fact been made at the substantive hearing. Magistrate Ginnane concluded the reasons of 17 July 2013 in this way (emphasis by italics added):

1. I am persuaded that it would be counterproductive to the interest of the parties and the interests of the proper administration and dispatch of court business for me to not permit the matter of penalty to be argued. It also strikes me that in the event either party desire to take the matter of my decision further that all matters arising should be determined compendiously.
2. There is a good deal of jurisprudence touching on the issue of when reasons for decision may be recalled or revised or revisited. Some matters turn on the application of the "slip rule" while other matters raise the extent to which, and at what point in time, a judge or judicial office may be functus officio and no longer seized of the proceeding.
3. I am confident that the decision expressed in my reasons to conclude the proceeding was made on a misapprehension on my part and not by reason of any misdirection or error in relation to a finding of fact or conclusion of law. I am therefore satisfied that it is open to me to recall the decision to the limited extent identified and in so far as I dismissed that part of the plaintiff's proceeding that sought the imposition of a penalty to set that part of the order aside.
4. The plaintiff's application for penalty and the defendant's application for costs will be listed for hearing as soon as is practicable.

20 The Body Shop did not appeal this determination.

21 The proceeding was relisted on 1 August 2013. No transcript of that hearing has been exhibited, but Mr Cowdery does not dispute the assertion made by the solicitor for the Body Shop in her affidavit[8] that that hearing concerned only interest, costs and penalty. Magistrate Ginnane delivered detailed reasons in relation to these three matter dated 20 September 2013.[9] Those reasons begin by reciting paragraph 50 of the reasons dated 2 May 2013; they then identify the plaintiff's contractual and statutory claims and state (at paragraphs 3 and 5 respectively): "The contract claim for redundancy failed" and "The plaintiff however succeeded on his claim under s 119 of the FWA to the extent of the award of 6 weeks' salary." At paragraph 7 of those reasons, the Magistrate recites the plaintiff's subsequent application for the imposition of a penalty and states (emphasis added):

I recalled part of my decision because it was predicated on a misapprehension by me that the application for a penalty had not been the subject of a reservation by the plaintiff until after the delivery of my reasons for decision.

22 The Magistrate refused both the application by the plaintiff for a penalty, and the defendant's application for costs. The final paragraph of those reasons states (emphasis added):

1. The plaintiff is now entitled to an order in a money sum to reflect the period referred to in my decision of 2 May 2013. Accordingly, the orders of the court are:
   1. Pursuant to s 119 of the FWA the defendant pay the plaintiff pursuant to the order made on 2 May 2013 the sum of $9,903.52 together with interest calculated from 12 January 2012 to 1 August 2013.
   2. The defendant's application for costs is dismissed.
   3. The plaintiff's application for penalty is dismissed.
   4. Liberty is reserved to the parties.

23 The orders made that day are evidenced by the 'notice of order made' sent to the solicitors for Mr Cowdery which is exhibited as MC1 to Mr Cowdery's affidavit sworn 25 October 2013. That document states (italicised emphasis added):

You are advised that on 20/09/2013 the following entries were made in the register:

(Parties' names)

PROCEEDING: CLAIM IN THE INDUSTRIAL DIVISION

ORDERS

NIGEL COWDERY- V-ADIDEM PTY LTD AS TRUSTEE FOR THE WISE THOMAS UNIT TRUST

DEFENCE TO CLAIM

Claim order:

ADIDEM PTY LTD AS TRUSTEE FOR THE WISE THOMAS UNIT TRUST to pay NIGEL COWDERY

Claim: $9,903.52 and Interest $0 Costs $0

OTH Order:

1. PURSUANT TO SECTION 119 OF THE FAIR WORK ACT THE DEFENDANT PAY THE PLAINTIFF PURSUANT TO THE ORDER MADE ON 2 MAY 2013 THE SUM OF $9,903.52 TOGETHER WITH INTEREST CALCULATED FROM 12 JANUARY 2012 TO 1 AUGUST.
2. THE DEFENDANT'S APPLICATION FOR COSTS IS DISMISSED.
3. THE PLAINTIFF'S APPLICATION FOR PENALTY IS DISMISSED.
4. LIBERTY IS RESERVED TO THE PARTIES.

24 Section 109 of the Magistrates' Court Act 1989 relevantly provides as follows:

(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 subsection (1)-

(a) must be instituted not later than 30 days after the day on which the order complained of was made; and

(b) does not operate as a stay of any order made by the Court unless the Supreme Court so orders.

(3) Subject to subsection (2), an appeal under subsection (1) must be brought in accordance with the rules of the Supreme Court.

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

(5) The Supreme Court may grant leave under subsection (4) and the appellant may proceed with the appeal if the Supreme Court-

(a) is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) 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.

(6) Not applicable.

(7) Not applicable.

25 The notice of appeal states in its preamble that Mr Cowdery appeals against the "final Orders of His Honour Magistrate Ginnane of the Magistrates' Court of Victoria made on 20 September 2013". The orders identified as being appealed are those that appear as orders 1 and 3 under the heading "Oth Order" on the Notice of Order Made.

26 The Body Shop asserts that orders dismissing the contractual claims, against which the appellant wishes to appeal, were made on 2 May 2013, and not on 20 September 2013. If that contention is correct, then the appeal is deemed, pursuant to s 109(4) of the Magistrates' Court Act, to be an application for leave to appeal. The grant of leave requires satisfaction of both paragraphs (a) and (b) of s 109(5). The Body Shop says that Mr Cowdery has not here shown exceptional circumstances i.e. has not shown that paragraph (a) is satisfied. In relation to paragraph (b), the Body Shop does not assert any special prejudice if leave is granted, other than the usual prejudice occasioned by delay.

27 Counsel for Mr Cowdery makes three submissions in response. First, that no final orders were made on 2 May 2013, and that all the final orders were made on 20 September 2013. If that is not correct, and there was a final order made on 2 May 2013 dismissing the contractual claims, counsel submits in the alternative that by reopening his decision in relation to penalty, the Magistrate effectively reopened the whole of the proceeding and so set aside any order made dismissing the contractual claims. If both of those submissions are not accepted, then counsel submits that exceptional circumstances are shown, and there is no prejudice to the Body Shop in granting leave to appeal out of time. It is common ground that the appeal in relation to the orders relating to penalty is within time.

1. Was a final order made on 2 May 2013 dismissing the contractual claims?
2. If yes, was that order set aside or re-opened by the Magistrate permitting the penalty issue to be reopened?

3. If no, are exceptional circumstances shown?

1. If yes, is there any material prejudice to the Body Shop if leave to appeal out of time is granted?

29 For the reasons set out below, I consider that the answers to these questions are:

1. Yes.

2. No.

3. Yes.

4. No.

Was a final order made on 2 May 2013 dismissing the contractual claims?

30 The first issue is whether any order was made at all on that day. The Body Shop relies on the document that was sent to the parties by the Magistrates' Court dated 2 May 2013, which is headed "Reasons for Decision" and the entry dated 2 May 2013 in the case log. Mr Cowdery relies on the usual practice of the Magistrates' Court when an order is made of giving notice of such order, as it did on 20 September 2013 by the document headed "Notice of Order Made", or by making available a certified extract from the register of the order.

31 Counsel for the Body Shop contends in his written submissions that the Magistrate gave his judgment orally on 2 May 2013 by "pronouncing it in open court".[10] I do not consider this is shown. Neither party was present on that day and there is no transcript of what occurred, if anything, in court that day. The only evidence from the Magistrates' Court as to what occurred (other than the written reasons being sent to the parties) is contained in the case log. There is no evidence explaining the purpose of the case log and how entries are properly to be read. Certainly the entry refers to "orders" being made, but it does not indicate how that occurred, or what they were. Accordingly, I do not consider that the entry in the case log establishes that orders, if made, were pronounced in open court or what they were. Further, the case log contains entries of different types- some that seem to be of a listing character, some that record letters sent or documents filed, and some others that record other administrative action. At most the case log may be an administrative case management tool that tracks events that occur in the management of a proceeding, but cannot be relied upon to accurately indicate the legal character of such an event. Accordingly, I would hesitate to even conclude from the entry alone that the judicial act of making an order occurred. If orders were made, they and their content must be found in the judicial act that indisputably occurred- the delivery of the reasons.

32 The "Reasons for Decision" of 2 May 2013 do not contain within them any content specifically identified as "orders". In this regard it is different from the last set of reasons dated 20 September 2013. In those reasons, the final paragraph, paragraph 68, specifically sets out what the "orders of the court are". The "orders" there set out are replicated in the Notice of Order Made dated 20 September 2013 under the heading "Oth order".

33 An interpretation that the "Reasons for Decision" dated 2 May 2013 were just that i.e. the reasons for orders still to be made, not the orders themselves, is supported by the opening words in the final paragraph of the document, paragraph 50. The paragraph begins: "For the reasons stated there will be an order on the claim for the defendant to pay the plaintiff the sum of 6 weeks of pay." (emphasis added). The use of the future tense implies the orders are not yet made. Confusion is, however, potentially introduced by the use of the present tense in the next following sentence which concludes: "I therefore order than otherwise than for the relief granted the claim is dismissed." (emphasis added).

34 Leaving aside for the moment the proper legal characterisation of the "Reasons for Decision" as reasons only or final order, it is clear from the steps taken by the parties after receipt of the Reasons for Decision that I set out earlier that they both regarded the Reasons for Decision as finally disposing of the contractual claims. Mr Cowdery's solicitors indicated immediately that he would appeal, and that was only possible if the matter had been substantively determined. Further, they did not at any stage seek to re-ventilate the contractual claims, only the issues of penalty, interest and costs.

35 The Magistrate too seems to have regarded his reasons of 2 May 2013 as determining the proceeding finally. The letter of 16 May 2013 from the Magistrates' Court records the view of the Magistrate that costs should be determined within the appeal period i.e. he regarded the period for appeal as having commenced, which could only be the case if he had disposed of the proceeding substantively. In his reasons dated 17 July 2013, the Magistrate explicitly expressed his view that the proceeding had been finalised in the May reasons. His discussion in paragraph 9 as to when "reasons for decision may be recalled or revisited" shows this. Magistrate Ginnane concluded that "it was open" to him to "recall the decision" but only to the "limited extent identified" i.e. as to penalty. In the last set of reasons, dated 20 September 2013, in order 1 of the orders set out in paragraph 68, the Magistrate specifically referred to an order having already been made in relation to the amount of redundancy pay (which in turn reflected that Mr Cowdery had failed on the contractual claims) on 2 May 2013.

36 Was this view, taken by the parties themselves at least in the period up to and including the 23 May 2013 relist, and by the Magistrate throughout, correct? The Magistrates Court Act gives little guidance as to what constitutes an "order" or a "final order" for the purposes of s 109, and in particular whether reasons that contain reference to disposition of a claim can themselves be a "final order" for that purpose. The definition of "order" in s 3 of the Act states that "order includes judgment and conviction". Rule 1.13 of the Magistrates Court General Civil Procedure Rules 2010 ("Magistrates' Court Rules") defines "order made" as "an order made by the Court at the hearing of a proceeding or on the hearing of an application in a proceeding" i.e. an "order" may be either final or interlocutory. These definitions do not resolve the issue that has arisen in this case.

37 I have considered the Supreme Court Act 1986 ("the Act") and the Supreme Court (General Civil Procedure) Rules 2005 ("the Rules") to see if the approach they take casts any light on this issue. Section 17 of the Act provides in sub-section 2 for appeal to the Court of Appeal not from an "order" of a Judge of the Trial Division, but from a "determination" of a Judge. Similarly, sub-section 3 provides for appeal to a Judge of the Trial Division from a "determination" of an Associate Judge. "Determination" is not defined in the Act. In the Rules, the time for the commencement by service of an appeal to the Court of Appeal from the court of first instance is stipulated in r 64.03 to run from the day the "decision" of the court of first instance was given. "Decision" is defined in Order 64 to include "a judgment, order, verdict or finding". Thus, in the Supreme Court, the act that gives rise to appeal rights is the substantive determination or decision, whether it is called an order or not. Should this interpretation also apply to appeal to the Supreme Court from the Magistrates' Court, notwithstanding the different terminology used?

38 In my view the answer is yes. To hold otherwise would be to give the formulation of the substantive determination by order greater significance than the substantive determination itself. This is not to deny the importance of the articulation of the substantive determination by perfected or authenticated order. There is, as Magistrate Ginnane noted in his reasons dated 17 July 2013, substantial jurisprudence to the effect that an order or decision may be changed in certain circumstances prior to authentication, but only in very limited circumstances thereafter. Authentication completes the process of judicial determination, but it is not the substantive determination itself.

39 This reasoning is consistent with the authorities to which counsel for the Body Shop refers in his written submissions.[11] Those authorities establish that in determining whether or not an order is final or interlocutory the Court looks to the legal effect of the order, not its practical consequence, or the nature of the application in which it was obtained. In other words, what is important is substance, not form. The approach I consider correct in determining whether or not orders were made in the Reasons for Decision dated 2 May 2013 similarly places emphasis on substance, rather than mode of articulation.

40 Further, I accept the submission by counsel for the Body Shop that the fact that the precise calculation of the sum of damages on the successful statutory claim was left to the parties does not make that order, or the orders as a whole, interlocutory. Nor does the reservation of liberty to apply, which allows parties to seek orders by way of implementation, not to seek different orders in substance.

41 The Magistrates' Court Act and Magistrates' Court Rules make provision in relation to orders and in relation to the authentication of orders. The relevant provisions are as follows:

Magistrates Court Act s 18:

18 Register

(1) The principal registrar must cause a register to be kept of all the orders of the Court and of such other matters as are directed by this Act or the Rules to be entered in the register.

(2) An order made by the Court must be authenticated by the person who constituted the Court.

(3) Any person may, subject to any order made under Part 3 of the Open Courts Act 2013 and on payment of the prescribed fee, inspect that part of the register that contains the final orders of the Court.

(4) A party to a proceeding may inspect without charge that part of the register that relates to that proceeding.

(5) A document purporting to be an extract from the register and purporting to be signed by a registrar who certifies that in his or her opinion the extract is a true extract from the register is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters appearing in the extract.

42 Magistrates Court Rules Orders 59 ("Orders") and 60 ("Authentication and filing of orders"):

59.02 Date of effect

An order made by the Court must, unless the Court otherwise orders, bear the date of and take effect on and from the day it is made.

59.03 Time for compliance

(1) Subject to paragraph (3), an order which requires a person to do an act is to be taken to mean, unless the Court otherwise orders, that the act must be done within 14 days after service of an order or of a certified extract from the register of the order.

...

59.08 Orders may be drawn up and certified extract

(1) An order may be drawn up by a party and verified by the registrar if a party so desires.

(2) Except where a special form of order is prescribed by these Rules, a certified extract from the Court record of any order is sufficient for any purpose for which an order is required.

...

60.04 Order signed by magistrate

(1) Where a magistrate makes an order, he or she -

(a) may sign the order; or

(b) may direct that the order be drawn up by a party and signed by the magistrate.

(2) Where that magistrate is unable for sufficient cause to sign the order, it may be signed by another magistrate, as the case requires.

60.05 Authentication of an order

For the purposes of section 18(2) of the Act, an order is authenticated -

(a) when the order is recorded in writing and signed by the person who constituted the Court; or

(b) if the order is entered into a computerised data storage and retrieval system, when it is confirmed in that system.

43 At first blush, the emphasis in the Magistrates' Court Act and Magistrates' Court Rules on authentication and provision for an extract from the register to be obtained to prove orders made could suggest that there is no order until it is authenticated and obtainable from the register. If orders were made by the "Reasons for Decision" dated 2 May 2013 they may not satisfy this test. Certainly there is no extract from the register in evidence of orders made 2 May 2013, as opposed to the "Notice of Orders Made" dated 20 September 2013.

44 In my view, however, these provisions should be seen as facilitative, and directed to the perfection of orders by authentication, not as exhaustive as to what may constitute an "order". As the Magistrates' Court Rules themselves recognise, authentication of an order is different to the making of the order. Further, the emphasis that the provisions give to authentication being undertaken by or under the direct supervision of the Magistrate constituting the court making the order supports the emphasis on substance that I consider should be given to determining when an order is made. An order made by a Magistrate in the body of reasons directly prepared by him or her and delivered at his or her direction could not more closely comply with such required connection to the court making the order.

45 For these reasons, I consider that an order was made in the Reasons for Decision dated 2 May 2013 to the effect that the contractual claims of Mr Cowdery were dismissed. Of its very nature dismissal of those claims was a final order, and it was not revisited in the subsequent hearings on penalty, interest and costs. If the case log can properly be described as the "register" required by the Act and Rules (no evidence or argument was directed to this point and so I make no finding), then arguably the order was entered into it that day (as recorded in the entry "Order/s made") and authenticated either then or at a later point in time. The date on which the order was authenticated is, however, immaterial. The order dismissing the contractual claims, unlike the order dismissing the claim for penalty, was not recalled by the Magistrate and took effect from the day it was made, being 2 May 2013. The appeal period commenced to run on that date.

Did recall of the penalty order recall the order dismissing the contractual claims?

46 Counsel for Mr Cowdery submits, although perhaps faintly, that once the Magistrate re-opened the proceeding in relation to penalty, the whole of the orders made in the Reasons for Decision dated 2 May 2013 (if I find orders were so made) were re-opened. There may be some support for this view in comments the Magistrate made in his 17 July 2013 reasons. In support of his conclusion that the question of penalty should be argued, as noted earlier the Magistrate added the following:

It also strikes me that in the event either party desire to take the matter of my decision further that all matters should be determined compendiously.[12]

47 It is not clear what the Magistrate meant. Did he mean that the appeal period had not yet begun to run or would be reset (which is consistent with the submission that once any part of the orders were recalled, the whole were), or something else, for example that that by the time any appeal was heard he should have determined all matters.

48 On balance, however, I do not consider this submission for Mr Cowdery to be correct. The Magistrate elsewhere indicated in his reasons dated 17 July 2013 that he re-opened what he regarded as his final disposition of the proceeding only in respect of penalty, and not generally. The contractual claims and the penalty claim were distinct. Mr Cowdery's legal representatives at no time sought to re-agitate the contractual claims while pursuing the matters of penalty, interest and costs. If the orders had not yet been authenticated when the Magistrate recalled the penalty issue, and were not so authenticated until 20 September 2013, then the possibility of recall of the contractual issues, if cause could be shown, may have continued. This is different from saying that they were recalled, however. There is no reason in principle why recall of one aspect of orders should mean the whole is recalled, and it is clear here that neither the parties nor the Magistrate considered that that had occurred in fact.

49 The consequence is that the appeal against the dismissal of the contractual claims is out of time. It is deemed to be an application for leave to appeal, and leave may only be given where the failure to institute the appeal within 30 days was due to exceptional circumstances, and the case of the Body Shop is not materially prejudiced by the delay.

50 In Miao v Body Corporate SP31235U,[13] Derham AsJ set out the principles and matters that are relevant to the grant of leave to appeal out of time. The relevant matters to this case are as follows. The onus is on the party seeking leave to appeal out of time to satisfy the Court of the matters specified in s 109(5)(a) and (b), and clear and cogent proofs are required. The inquiry is confined to the circumstances relevant to the applicant's failure to appeal within time and whether they may be characterised as exceptional. The inquiry is not a consideration of all matters germane to the appeal, such as the merits of the appeal. "Exceptional" circumstances must be such that they can be said to "rarely occur" and "perhaps be outside reasonable anticipation or expectation".[14]

51 There is no information to show exceptional circumstances in the only affidavit filed by Mr Cowdery in support of his summons for directions in the appeal. That affidavit was filed with his summons for directions on 25 October 2013. The submission by the Body Shop that the appeal, in so far as it seeks to appeal the dismissal of the contractual claims, is out of time was taken on the return date of the summons, which was 14 November 2013. The point was, however, flagged in the affidavit filed by the solicitor for the Body Shop on 8 November 2014 and made explicit in an email exchange between the parties and the Court on 13 November 2013. Counsel for Mr Cowdery contended as indicated that the appeal was in time, and did not seek any adjournment to file further evidence if I was against him on this point.

52 Counsel for Mr Cowdery submits that it was reasonable for Mr Cowdery, through his solicitors, to take the view that no order had been made on 2 May 2013 given that they had not been given an extract from the register to that effect. This submission does not sit well with the clear intention to appeal demonstrated in the letters from Mr Cowdery's solicitors immediately after receipt of the 2 May decision. There is also no evidence of any request that was made for a certified extract of any order.

53 Counsel further submits that it was for the Body Shop to take its objection at some earlier point in time, not identified but prior to the service of Ms Pollett-Sutton's affidavit. It is said that this flows from the obligations imposed on parties by ss 19 and 20 of the Civil Procedure Act 2010. Those provisions respectively impose obligations on parties and their lawyers to not take steps in civil litigation unless the step is reasonably believed to be necessary to facilitate the resolution or determination of the proceeding and to cooperate with the other party and the Court. The submission is misconceived. Those obligations did not require the Body Shop to put Mr Cowdery on notice that, should he file an appeal outside the period the parties jointly regarded, at least initially, as the appeal period, the Body Shop would contend he was out of time. The point arises squarely from the facts and notice of it was given by the affidavit filed by the respondent, filed shortly after the commencement of the appeal. If notification at that stage required an adjournment to obtain evidence to justify leave to file out of time, an adjournment could have been sought. It was not.

54 It seems to me possible that, once Mr Cowdery was successful in persuading the Magistrate to re-open the penalty question, his mooted appeal in relation to dismissal of the contractual claims was either deliberately or unintentionally delayed. However, there is no evidence that this in fact occurred. There is simply no evidence as to what occurred in relation to the proposed appeal, that had been mooted from 9 May 2013, until the filing of the Notice of Appeal dated and filed 18 October 2013.

55 Despite the absence of evidence as to what actually occurred in relation to the mooted appeal, I have given consideration to whether the known steps taken by the Magistrate are sufficient alone to constitute exceptional circumstances that caused the appeal to be delayed. The relevant matters are that the Magistrate was persuaded within the appeal period to recall one order he had made on 2 May 2013, but both his decision as to whether or not he would do so and the actual determination of the penalty issue did not occur until well after the appeal period running from 2 May 2013 had expired. Is this sequence of events alone properly described as exceptional so as to justify leave out of time?

56 In my view, yes. In this unusual set of facts, I consider exceptional circumstances shown notwithstanding the absence of direct evidence from the appellant connecting those facts to his delay. It is very rare that a court will recall an order once it is made and revisit the subject matter of the order. That step is fairly described as "exceptional". There is no direct evidence as to whether the application for recall in relation to penalty and the delay in determining the issue actually were the reasons for the delay in filing an appeal against dismissal of the contractual claims, but I consider that to be a fair inference, given the earlier demonstrated commitment to appeal.

57 It may, notwithstanding the application for the recall, have been possible for Mr Cowdery to have protected his interests in respect of the dismissal of the contractual claims by lodging an appeal within 30 days of 2 May 2013, and then seeking adjournment or stay in the appeal until the penalty issue was resolved, once it became clear that a decision on whether or not that issue would be reopened would not be given by 2 June 2013. This is a counsel of perfection, however, and in hindsight. The Magistrate himself conceded he was initially wrong in his recollection of the February 2013 hearing and took time to consider what action should now be taken. I do not think it just to impose a greater expectation of vigilance on a party in protection of his rights, when the court itself conceded initial error in a matter so closely related to the running of the appeal period.

58 The Body Shop does not assert any special prejudice arising from the delay, other than the usual prejudice of not being able to retain the benefit of the judgment and possible prejudice arising if the matter is ultimately remitted for retrial. Whatever occurs in relation to the appeal in respect of the contractual claims, there is an appeal brought within time in respect of the determination that there be no penalty imposed. Thus, determination of the leave question, even if favourable to the Body Shop does not finalise the whole of the appeal. In the absence of special prejudice arising from the delay, I am satisfied that the Body Shop is not materially prejudiced if leave to appeal out of time is given.

59 I will grant leave to appeal out of time in respect of the appeal against the determination of the contractual claims. The Body Shop has also flagged an application for summary dismissal of the appeal. In response, counsel for Mr Cowdery indicated that the appeal grounds may be redrawn. That would certainly appear advantageous. Without expressing any view as to whether or not the matters raised are truly questions of law, as opposed to questions of fact, or whether or not they are arguable, it is immediately apparent that there are very many of them. A compelling question of law can usually be expressed succinctly. Further, no transcript of the hearing has been exhibited. If consideration of any of the questions that remain after they are revisited requires examination of the transcript, it must be put in evidence.

60 For these reasons, I will publish these reasons in the absence of the parties and then relist the proceeding some little time thereafter to give the appellant time to redraw the notice of appeal, should he wish to do so, and to obtain the transcript if that is necessary. The parties should also give consideration to whether the application for summary judgment is to proceed. As noted in discussion, the test for summary dismissal is a high one. The full hearing of a Magistrates' Court appeal usually takes only one day, there being no oral evidence and only argument following written submissions. A contested summary judgment application may take almost as long. The parties should give consideration to whether a better use of their resources may not be to preserve their arguments for the full hearing of the appeal.

[1] EPS-20 to the affidavit of Emma Pollett-Sutton affirmed 8 November 2013.

[7] Reasons for Decision dated 17 July 2013, exhibited as EPS-16, at [4].

[9] NC-3 to Mr Cowdery's affidavit sworn 25 October 2013.

[10] Respondent's Outline of Submissions dated 14 November 2013 at [8].

[13] [2013] VSC 380.