The appeal to a single judge of this Court is competent.

APPEAL - Jurisdiction - Appeal from the Master - Legislative amendments - Amendments affecting procedure or substantive rights - Right of appeal

Courts Legislation Amendment Act 2015 (ACT), Pt 11

Evidence Act 2011 (ACT)

Evidence Act 1995 (Cth)

Judiciary Act 1903 (Cth)

Legislation Act 2001 (ACT), s 84

Limitation Act 1985 (ACT), ss 16A, 36

Supreme Court Act 1933 (ACT), s 9(2)(a)

Arnett v Holloway [1960] VicRp 6; [1960] VR 22

Australia and New Zealand Banking Group Ltd v Manny (No 4) [2013] ACTSC 236

Biala Pty Ltd v Mallina Holdings Ltd [1989] 2 WAR 381

Border Auto Wreckers (Wodonga) Pty Ltd v Strathdee [1996] VSC 55; [1997] 2 VR 49

Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326

Cleary v Rinaudo [2012] ACTSC 179

Colonial Sugar Refining Co v Irving [1905] AC 369

Colonial Sugar Refining Co v Irving in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] 1 Qd R 372

Ex parte Britt [1987] 1 Qd R 221

Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188

Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 136 CLR 379

Howard v Bondfield (1974) 3 ACTR 62

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

Merton Enterprises Pty Ltd v Nelson (1988) 13 NSWLR 454

Minister for Home & Territories v Smith [1924] HCA 41; [1924] 35 CLR 120

Republic of Costa Rica v Erlanger (1876) 3 Ch D 62

Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515

R v Djenadija [2015] ACTSC 29

S & B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380

Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 Qd R 210

Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300

Vizovitis v Ryan (t/as Ryans Barristers and Solicitors) (No 2) [2012] ACTSC 206

Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28

Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553

1. For some time now, the jurisdiction of the judicial officer then known as the Master (now, since 21 April 2015, known as the Associate Judge) had a civil jurisdiction coextensive with that of a single judge of this Court: Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326 at [16].

2. The appeal provisions, however, remained the same as when the position was first established, namely that appeals from interlocutory decisions of the Master were appellable by right to a single judge of this court.

3. For some time, the Court has sought reform of these appeal provisions which are no longer appropriate. See, for example, Cleary v Rinaudo [2012] ACTSC 179 at [1], Vizovitis v Ryan (t/as Ryans Barristers and Solicitors) (No 2) [2012] ACTSC 206 at [23]; Australia and New Zealand Banking Group Ltd v Manny (No 4) [2013] ACTSC 236 at [39].

4. This was changed by the Courts Legislation Amendment Act 2015 (ACT) which commenced on 21 April 2015.

5. By that Act, the office of Master was re-described as Associate Judge and, inter alia, interlocutory decisions of that judicial officer ceased to be appellable as of right to a single judge of this court and became appellable only by leave to the Court of Appeal, thus bringing them into line with the position that applied to decisions of a single judge of the court.

6. These amendments were principally effected by amendments to the Supreme Court Act 1933 (ACT). No transitional provisions were enacted, however, but a new Pt 11 was inserted which authorised regulations to prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Courts Legislation Amendment Act.

8. The plaintiff in these proceedings, Neil Dykes, claims to have been employed by the defendant, Bunnings Group Limited, as a shop assistant/carpenter when he says that, on 10 March 2003, he was injured at work through the negligence of the defendant.

9. On 25 June 2014, he commenced proceedings in this Court for the recovery of damages and costs for the injuries, loss and damage he says he suffered.

10. As Mr Dykes claims he suffered the injuries at work, s 16A of the Limitation Act 1985 (ACT) provides that his action is not maintainable if brought three or more years after the day the injury happened. That is the position here. Nevertheless, s 36 of the Limitation Act provides that the court may, in certain circumstances, order that the period within which an action on the cause of action may be brought be extended for the period that it determines.

11. By Application in Proceedings, dated 9 September 2014, Mr Dykes sought an extension of time within which to proceed with the action.

12. On 5 December 2014, Master Mossop, as his Honour then was, extended the period within which the action may be brought to 25 June 2014.

13. Being dissatisfied with the decision of the Master, Bunnings Group Ltd appealed from the decision on 11 December 2014.

14. There is no doubt that the decision of the Master was an interlocutory decision. See, for example, Ex parte Britt [1987] 1 Qd R 221, Merton Enterprises Pty Ltd v Nelson (1988) 13 NSWLR 454; S & B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380; Border Auto Wreckers (Wodonga) Pty Ltd v Strathdee [1996] VSC 55; [1997] 2 VR 49; Biala Pty Ltd v Mallina Holdings Ltd [1989] 2 WAR 381.

15. Accordingly, that appeal, being from an interlocutory decision, was by virtue of s 9(2)(a) of the Supreme Court Act, made as of right to a single judge of this Court.

16. The appeal has not yet been heard. A question has arisen, therefore, as to whether the amendments effected by the Courts Legislation Amendment Act means that the appeal as now constituted is incompetent and that the defendant is required to make an application for leave to the Court of Appeal.

17. That is to say, has the amendment now had the effect of replacing the appeal mechanism on which Bunnings Group Ltd relied? Did the legislation have the effect of retrospectively abolishing the availability of the appeal that Bunnings Group Ltd had sought to exercise?

18. In Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 at 194, 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.

19. Such an approach has been endorsed by the High Court in Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 136 CLR 379 at 398, 399-400, 401. This approach has been acted upon by the courts many times since then.

20. Nevertheless, that general rule has been held not to apply to statutes that are concerned with matters of procedure only.

21. As Fullagar J (dissenting on the outcome of the case but not on this principle) also said in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 285-6:

The established rule, however, is subject to an established exception. It is said not to apply to 'statutes dealing with procedure' - 'statutes of a procedural character'...A consideration of the cases generally cited in this connexion has led me to think that the distinction is probably best stated by saying that it is between statutes which create or modify or abolish substantive rights or liabilities on the one hand and statutes which deal with the pursuit of remedies on the other hand. In the former class of cases there is a presumption against retrospective operation in the sense explained above. In the latter class of case there is no such presumption: on the contrary, the presumption is that the enactment applies to all proceedings commenced after it became law, and it may be right to construe it as applying even to proceedings commenced before it became law.

22. See also, per Dixon CJ at 267, per Williams J at 277.

23. The question then is whether the amendments and repeals to the Supreme Court Act changing the arrangements for the appeal from interlocutory decision of the Master are procedural and therefore retrospective in operation so as to render this appeal now incompetent.

24. Like some other distinctions (such as between interlocutory and final orders: see Australia and New Zealand Banking Group Ltd v Manny (No 4) at [40]), the distinction between what is a procedural Act and what is an Act affecting substantive rights is, as Dixon J said in Maxwell v Murphy at 267, "clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its applications".

25. Indeed, in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at 561, the Privy Council went further, pointing out:

In our view there are no cases upon which differences of opinion may more readily be entertained, or which are more embarrassing to dispose of, than the cases where the court has to decide whether or not an amending statute affects procedure and consequently will operate retrospectively or affects substantive rights and therefore in the absence of a clear contrary intention, should not be read as acting retrospectively. The distinction between procedural matters and substantive rights must often be of great fineness. Each case therefore must be looked at subjectively; there will inevitably be some matters that are classified as being concerned with substantive rights which at first sight must be considered procedural and vice versa.

26. More recently, Spigelman CJ has gone further and, in Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300 at [125]- [126], doubted the utility of the distinction at all, saying:

[125] Furthermore, to classify something as 'procedural' is often the end result of a process of interpretation, rather than the starting point. Indeed, Julius Stone identified the distinction between substance and procedure as so indeterminate that it fell into his Legal Category of Meaningless Reference. (Julius Stone Legal Systems and Lawyers' Reasonings, Maitland, Sydney, 1964, pp 340-341.)

[126] As Frankfurter J said in Guaranty Trust Co of New York v York, [1945] USSC 134; 326 US 99 (1945) at 108:

Matters of 'substance' and matters of 'procedure' are much talked about in the books as though they defined a great divide cutting across the whole domain of law. But, of course, 'substance' and 'procedure' are the same key-words to very different problems. Neither 'substance' nor 'procedure' represents the same invariants. Each implies different variable depending upon the particular problem for which it is used.

27. Allied to this issue is s 84 of the Legislation Act 2001 (ACT) which relevantly provides:

(1) The repeal or amendment of a law does not -

...

(c) affect an existing right, privilege or liability acquired, accrued or incurred under the law ...

28. The question may then be put as to whether the commencement of the appeal in this case constitutes a right which has been acquired or accrued and is, therefore, protected from the amendments and repeals effected by the Courts Legislation Amendment Act. That may also help to decide whether the legislation was procedural or substantive.

29. This matter is not free from authority. For example, in Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28, the High Court held that the power to appeal from a lower court decision is a matter affecting rights and not a matter of procedure. Barton J, delivering the judgment of the court, said at 31:

There can be no doubt that the power to 'appeal' is a right, and not procedure. Procedure may and generally does surround it but the central notion of an appeal is undoubtedly a right. Lord Westbury described it thus: 'an Appeal is the right of entering a superior court, and invoking its aid and interpretation to redress the error of the court below' (Attorney-General v Sillema [1864] EngR 352; (1864) 10 HLC 704 at 724; [1864] EngR 352; 11 ER 1200 at 1209).

30. A more significant example is Colonial Sugar Refining Co v Irving [1905] AC 369. In that case, proceedings had commenced in the Supreme Court of Queensland in 1902. In that year, an unsuccessful party had a right to apply to the Supreme Court of Queensland for leave to appeal to the Privy Council. After the writ was issued, however, but before judgment was given, the Judiciary Act 1903 (Cth) commenced. Among the provisions of that Act, it abolished the right to apply to the Supreme Court of Queensland for leave to appeal to the Privy Council in the class of cases to which the proceedings applied. Provision was made, instead for appeal to the High Court of Australia.

31. Nevertheless, the unsuccessful party in the proceedings sought and was granted leave from the Supreme Court of Queensland to appeal to the Privy Council. The respondent, however, applied to the Privy Council for the proceedings to be dismissed on the basis that the alteration effected by the Judiciary Act was procedural only and therefore applied to pending actions.

32. Lord McNaughten, delivering the judgment of the Privy Council, said at 372-3:

As regards to the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence that the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to superior tribunal which belonged to him as of right is a very different thing from regulating procedures. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring an appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.

33. See, also Minister for Home & Territories v Smith [1924] HCA 41; [1924] 35 CLR 120. The Queensland Court of Appeal also followed Colonial Sugar Refining Co v Irving in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] 1 Qd R 372 at 376; [5].

34. In Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 Qd R 210 at 218, McPherson J went so far as to say:

A right of appeal that exists when the proceedings are instituted is considered as inhering in the proceedings from commencement of the action, and so will not be affected by subsequent statutory restriction unless it is plain that the restriction is intended to have retrospective application.

35. There is, indeed, authority in this jurisdiction on the matter.

36. In Howard v Bondfield (1974) 3 ACTR 62, Connor J had to consider whether an appeal by way of order nisi to review an order of the Court of Petty Sessions dismissing an information brought by a Constable of police charging the respondent with a drink-driving offence was competent. The appeal was dismissed on 13 December 1973 and on 29 March 1974, an order nisi was granted to the informant to review the dismissal.

37. On 10 April 1974, however, the power of an informant to appeal by way of orders to review against an order dismissing an information of this kind was abolished. That was before the return of the order nisi could be heard.

38. Connor J held at 63-4 that the ordinance abolishing that right of review did not manifest any intention to act retrospectively and that it deprived the informant of a right which he had immediately before it came into operation and thus the amendment had no application to the appeal.

39. In this case, it seems to me the same position applies. At the time that Bunnings Group Limited lodged its Notice of Appeal, it had a right to appeal to a single judge of this Court.

40. I have carefully read the Courts Legislation Amendment Act and can find no express or necessarily implied intention that the repeal effected by that Act of the entitlement to appeal, as of right, to a single judge of this Court from an interlocutory decision of the Master was to operate retrospectively.

41. At the hearing to decide this issue, counsel for Mr Dykes referred me to two authorities, R v Djenadija [2015] ACTSC 29 and Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council.

42. In R v Djenadija, Burns J had to decide whether provisions regulating the admission of tendency evidence under the Evidence Act 2011 (ACT) applied to the prosecution of offences which were alleged to have been committed between 1982 and 1984, when neither the Act nor the Commonwealth Act, the Evidence Act 1995 (Cth), which formerly regulated the admission of evidence in this Territory, and which was relevantly in the same terms, applied, even though enacted many years after the alleged offences.

43. His Honour relied principally on Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, which held that the repeal of a provision requiring corroboration of the evidence of a complainant and which provision applied at the time the offence was alleged to have been committed meant that, at the trial, held after the repeal of the provision, corroboration was no longer required. The High Court held, at 523, that the statutory amendments were "procedural in character". His Honour therefore held that the Evidence Act provisions applied.

44. This is a very different situation here as the amendment and repeal relate not to the way in which the litigation is conducted but to the very right to approach the Court.

45. Similarly, in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council, the issue was which rule as to costs should apply to the proceedings, the rules having been amended during the currency of the litigation.

46. Spigelman CJ referred to Maxwell v Murphy and to Rodway v The Queen. His Honour also pointed to the commonly cited comments of Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 at 69:

No suitor has any vested interest 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.

47. After referring to what Dixon J had said in Maxwell v Murphy at 267, his Honour then held at [121]:

It is appropriate to classify a discretionary power to award costs as falling within the concept of 'the manner' in which the 'enjoyment' of a legal right 'is to be secured'.

48. His Honour proceeded to consider what the effect of the amending or repealing legislation was intended to be rather than relying on a formal categorisation of "procedural" or "substantive".

49. In that case, his Honour held that the costs rule which applied before the proceedings (in that case the appeal) commenced should apply. He applied the principle of "injustice" as mentioned in Republic of Costa Rica v Erlanger, even though there was long-standing authority in Arnett v Holloway [1960] VicRp 6; [1960] VR 22, which had decided that costs rules are entirely procedural.

50. Neither party submitted that there were any issues of justice involved in this case. I do note that Mr Dykes indicated that, were the new provisions to apply, he would oppose a grant of leave to appeal. That is perhaps relevant when the prior provision gave Bunnings Group Ltd a right to appeal, though that cannot be determinative. If injustice were the key consideration, this would favour a finding that the present appeal was competent.

51. I have carefully considered the authorities and I have carefully scrutinised the legislation. I also assume that the legislature was aware of the principles set out in the relevant authorities.

52. In the event, it appears clear to me that the appeal commenced by Bunnings Group Limited is competent and should be heard by a single judge.

I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge