STATUTORY PROVISIONS AND ANALYSIS
11 The matter in issue between the parties is to be resolved by determining the intention of the Parliament when enacting the amendment to s 12 of the Local Courts (Civil Claims) Act 1970.
12 The approach of the courts to the construction of amending acts is clearly expressed in Maxwell v Murphy (1957) 96 CLR 261 in which Dixon CJ said:
"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to factual events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to those past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy, is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise passed and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 ChD 62. 'No suitor has any vested right in the course of procedure, nor any right to complain if during the litigation the procedure is changed, provided, of course, that no injustice is done (at 69)'.
The distinction is clear enough in principle, and its foundation in justice is apparent. But difficulties have always attended its application. In some cases, they have been due to the discovery in the nature or context of the legislation, or in its subject matter of indications, whether faint and conjectural or strong and persuasive, of a desire to cover situations already existing." (at 267)
13 The determination of the intention of the Parliament is the goal. The approach referred to Maxwell v Murphy (supra) is an aid in reading that goal. If the language of the statute or its policy or its context, subject matter, nature or surroundings point to an intention that an amending provision should operate in respect of facts or events that have already occurred then the general rule referred to above will not apply. Although the court should not be too ready to depart from the general rule, the nature and degree of the injustice that would result from such a departure and the general policy of or underlying the act which has been amended are relevant considerations. Thus, in Doro v Victorian Railways Commissioners (1960) VR 84 it was held that where a long standing limitation on the amount that a claimant could recover under certain legislation was increased by amendment after an action had been commenced, but before its trial, the amended i.e. increased, amount should apply to all cases that were heard after the commencement of the amending act.
14 To a like effect is the decision of the Hight Court in Fisher v Hebburn Ltd (1960) 105 CLR 188. In that case the court considered an amendment to the then Workers Compensation Act which expanded the definition of and entitlements arising from certain incapacity suffered by a worker. Fullagar J said:
"There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement. The rule has been frequently applied to amending statutes relating to workers' compensation and it has often been held that such amendments apply only in respect of 'accidents' or 'injuries' occurring after their coming into force: the cases of Moakes v Blackwell Colliery Co Ltd (1925) 2KB 64 and Kraljevich v Lake View and Star Limited (1947) 75 CLR 169 are familiar examples. But there is no rule of law that such statutes should be so construed, and it would not be true to say that a retrospective effect can only be avoided by confining the operation of such a statute to subsequently occurring 'accidents' or 'injuries'. It may truly be said to operate prospectively only although its prospect begins, so to speak, with some event other than accident or injury." (supra at 194)
15 The Local Courts (Civil Claims) Act 1970 provides that the Local Court is divided into two divisions, namely the General Division and the Small Claims Division (s.6(1)). In the General Division the jurisdiction is to be exercised by a Magistrate sitting alone. However, in the Small Claims Division it may be exercised either by a Magistrate sitting alone or by an Assessor (s.6(3)). As at 1 November 1999 the Local Court sitting in its Small Claims Division had jurisdiction to hear and determine actions for the recovery of any debt, demand or damage in which the amount claimed was not more than $3,000 (or such greater amount as the rules may prescribe), whether on a balance of account or after an admitted set-off or otherwise (s.12(3)). The Court sitting in its General Division had jurisdiction to hear and determine actions for the recovery of any debt, demand or damage in which the amount claimed is not more than $40,000 (s.12(1)). The specific terms of these two sub-sections at the time of commencement of the action were as follows:
"(1) Subject to this Part, a court sitting in its General Division has jurisdiction to hear and determine actions for the recovery of any debt, demand or damage (whether liquidated or unliquidated) in which the amount claimed is not more than $40,000, whether on a balance of account or after an admitted set-off or otherwise.
…
(3) Subject to this Part, a court sitting in its Small Claims Division has jurisdiction to hear and determine actions for the recovery of any debt, demand or damage (whether liquidated or unliquidated) in which the amount claimed is not more than $3,000 (or such greater amount as the rules may prescribe), whether on a balance of account or after an admitted set-off or otherwise."
16 The exercise by the Local Court of its power to refer matters to arbitration under the Arbitration (Civil Actions) Act 1983 is conditioned by s 21H of the Local Courts (Civil Claims) Act 1970. Section 21H(2) of that Act specifies the matters that the court shall have regard to before making an order. Those matters include the giving of directions for the conduct of the proceedings before the arbitrator "that appear best adapted for the just, quick and cheap disposal of the proceedings" (s 21H(2)(c)). Section 21H(3) prescribes the circumstances under which the court is prohibited from referring a matter to arbitration. They include considerations such as whether the action involves complex questions of law or fact (s 21H(3)(b)), whether the hearing of the action is expected to be lengthy (s 21H(3)(c)) and whether cause has been shown in a particular case why the action should not be so referred (s 21H(3)(e)). Thus the actions that are referred to arbitration are the more simple, short and straightforward matters. These are to be dealt with in a way that is best adapted for their just, quick and cheap disposal.
17 These provisions of the Local Courts (Civil Claims) Act 1970 find an echo in s 18A of Arbitration (Civil Actions) Act 1983, which limits rights of appeal in cases of small value (s 18A(2)) and in s10(2) which requires the arbitrator to act on the substantial merits of the case without regard for technicalities or legal forms.
18 An examination of the Local Court (Civil Claims) Act 1970, including but not limited to the statutory basis for the Small Claims Division, reveals a clear legislative policy in relation to claims for small amounts namely that there should be a quick, cheap and informal resolution of them. The legislation has been so framed as to ensure to the greatest extent possible that such small claims in the Local Court should begin and end in that court. The limitation on the right of appeal permitted by the statute betokens this. Taking up the time of superior courts with small cases is to be avoided. (Kojima v Australian Chinese Newspapers [2000] NSWSC 1153). Such an avoidance has the effect of helping to reduce delay in the courts. That this is in an important question of policy in the law is recognised by Gummow and Hayne JJ in Jakamarra v Krakouer (1998) 153 ALR 276, in which they said:
"Delays in the courts are a major cause of disquiet, not only amongst those who resort to the courts, but also amongst judges and all others associated with the courts. Delay will almost always impede the proper disposition of any case that does not come on to trial promptly … delay … also adds to the overall burden on the judicial system … (and) keeps another case out of the lists …" (supra at 283).