JUDGMENT (Appeal decision of Local Court Magistrate - extend time for service - statement of claim)
1 HER HONOUR: By summons filed 4 January 2005 the plaintiff seeks an order that leave be granted to appeal the decision of his Honour Hodgson LCM made on 8 December 2004 in 429/1998 at Forster Local Court be vacated; and secondly that the notice of motion heard on 8 December 2004 between the plaintiff and the defendants be quashed and in substitution that the notice of motion be dismissed with costs. The plaintiff relied on his affidavits sworn 24 December 2004, 23 February 2005 and 28 February 2005 and the affidavit of Paul Kevin Gowran sworn 4 May 2005. The plaintiff is William Grant Bidner (Bidner). The first defendant is Neville Bridge, the second defendant is Valerie Fay Bridge (the Bridges).
2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. It cannot be said that the Tribunal member acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588.
3 No grounds of appeal as required by Part 51A r 5 of the Supreme Court Rules 1970 (NSW) have been provided. While the appeal could have been struck out as incompetent, I have elected to take this course. However, I acknowledge that approach gave the plaintiff an advantage as to whether leave should be grant as he was not constrained to any particular grounds of appeal.
4 Section 69(2B) provides that an appeal against an interlocutory order does not lie to this Court except by leave. Where an interlocutory order does not determine the rights of the parties, the order would usually be an exercise of discretion on a point of practice or procedure.
5 In Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452, the High Court stated (at 458):
"In general, the orderly administration of justice would be impeded if this Court intervened in interlocutory proceedings in a matter pending in a court of trial. It is the responsibility of a court of trial to determine the course of interlocutory proceedings, subject to appeal to the relevant intermediate appellate court."
6 However, more recently in Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207, [2002] NSWCA 104, the Court of Appeal considered whether an interlocutory appeal concerning a limitation matter should be entertained. In Itek the Court of Appeal agreed with the approach taken in Kessey v Golledge (1999) 30 MVR 95 where Rolfe AJA (with whom Sheller and Beazley JJA agreed) held that the appellate court should decide whether leave under s 52(4) of the Motor Accidents Act 1988 (NSW)should or should not be granted before the substantive proceedings were heard. This is because an erroneous interlocutory order which allows proceedings to be commenced and continued should, if possible, be corrected before trial, not later. However, the Court of Appeal also commented that the position is quite different where the reversal of an interlocutory order would not avoid a first trial or require a second trial. Had an order for an extension of time to serve the statement of claim not been made, the proceedings would have been at an end. The same reasoning as in Itek applies to an extension of time to serve a statement of claim so I will adopt the approach taken in Itek and grant leave to appeal.