Kuek v Victoria Legal Aid [1999] VSC 158

9. The Supreme Court Rule applicable to an application for leave to appeal is Rule 58.16 which reads:

"Insofar as an appeal is deemed to be an application for leave to appeal, the application shall be made by originating motion in Form C and shall be heard and determined by a Master."

13. The plaintiff's originating motion was filed in the Court on 15 February 1999 whereas the last day for instituting the appeal in compliance with s.109(2)(a) of the Act was 18 January 1999. The plaintiff therefore was some 28 days out of time.

16. However, the plaintiff, who is a solicitor of this Court, contends that there are exceptional circumstances surrounding his failure to institute his appeals within time and that his application for leave to appeal should have been granted.

19. In his affidavit sworn 15 February 1999 and filed in support of his application the plaintiff has stated:

"3. On 24 December 1998 I telephoned the Supreme Court registry and enquired about making an appointment to commence applications to a Master of the Supreme Court of Victoria pursuant to section 109 of the Magistrates' Court Act 1989. I was told by a member of the registry staff that the Court would not make any appointment with a Master until the second half of January 1999 because of the Christmas vacation. 4. On 12 January 1999 I telephoned the Supreme Court registry and again enquired about an appointment to make applications to a Master pursuant to section 109 of the Magistrates' Court Act 1989. I spoke to a woman who informed me that for the purposes of commencing an appeal to the Supreme Court, the period between 24 December 1998 and 9 January 1999 inclusively was excluded. I accepted and relied on this advice and calculated the final date for making the application as 3 February 1999. 5. Because of the advice I received from the Supreme Court registry, I did not commence the proceedings within 30 days."

23. Having formed the erroneous view that the last day for instituting his appeals was 3 February, and in a moment I shall elaborate upon my statement that the view was erroneous, on 2 February 1999 the plaintiff attended before Master Evans and made applications to the Master, each application being supported by an affidavit sworn by the plaintiff, that the Master state each question of law that the plaintiff was able to demonstrate was shown to be raised by the appeals. Such applications were made pursuant to the provisions of Rule 58.09. See proceedings No. 4247 and No. 4248 of 1999.

26. However, Master Evans took the view that the applications were made out of time and that if the plaintiff wished to make applications for leave to appeal he should file an originating motion in the Court.

29. It was in that situation that the plaintiff filed the originating motion in proceeding No. 4392 of 1999 which was the originating motion before Master Wheeler and is now the originating motion before me.

35. The first argument advanced on behalf of the plaintiff is that Rule 3.04(1) does apply to the 30 day period fixed by s.109(2)(a) of the Act and that his applications to the Master were therefore within time.

"In calculating the time fixed by these Rules, or by any order fixing, extending or abridging time, the period from 24 December to 9 January next following shall be excluded, unless the court otherwise orders."

42. I am unable to accept the plaintiff's contention.

45. Sub-section (3) of s.109 of the Act makes it abundantly clear that so far as the time factor for the institution of an appeal is concerned the applicable provision is sub-section (2) of the section, not any provision in the Supreme Court Rules relating to time. That must follow from the use of the words "Subject to sub-section (2), an appeal under sub-section (1) must be brought in accordance with the rules of the Supreme Court" in sub-section (3).

48. In any event a rule of this Court can not have the effect of extending a period of time stipulated in a statute unless the statute in question or some other statute gives the Court express power to do so. That is not the case so far as s.109(2)(a) is concerned.

51. I turn then to the circumstances which the plaintiff contends are exceptional.

54. Accepting that the plaintiff was told by a woman in the Supreme Court registry that for the purposes of commencing an appeal to this Court from the Magistrates' Court the period between 24 December 1998 and 9 January 1999 inclusively was excluded, I am not persuaded that the acceptance by the plaintiff of such erroneous information can amount to an exceptional circumstance.

57. As I have already pointed out, the plaintiff is a solicitor of this Court. It was quite inappropriate for him to rely upon what some member of the Prothonotary's staff told him in relation to such an important matter. Surely it was incumbent upon him to read the provisions of s.109 of the Act. Had he done so he should have been left in no doubt about the matter.

60. Although it was not argued before me that the unavailability of a Master between 24 December and the second half of January was also a factor to be taken into account, and in my opinion it is not, as the plaintiff has made reference to it in his affidavit, it is appropriate that I make the following observation.

63. There is a Judge of this Court available throughout the whole of December and January to hear Practice Court applications. It is common knowledge that he hears all applications including those which would normally be made to a Master. There is no reason why the plaintiff could not have made his applications to that Judge during the latter half of December or during January.

66. The appeal from the orders of Master Wheeler made on 22 April 1999 will be dismissed.

69. Having dismissed the plaintiff's applications for leave to appeal the Master then made further interlocutory orders relating to the filing of further affidavits by the parties and then fixed a date for the hearing of the proceeding.

72. I assume the Master did so because part of the relief sought in the plaintiff's originating motion was that proceedings No. 4247 and No. 4248 be consolidated and then conducted pursuant to the provisions of Order 56 of the Rules.

75. I have grave doubts as to the validity of such a procedure. In the absence of any rule authorising such a course to be adopted it would seem very difficult to convert what is no more than an affidavit in each of those proceedings to originating motions filed in the Court pursuant to the provisions of Order 56. However, as the matter was not argued before me, I express no concluded view concerning it.

78. I order that the plaintiff pay the first defendant's costs of the appeal including any reserved costs.