Patterson v Northern Territory & Anor [2001] NTSC 93

Limitation Act ss 5, 44(1)(a) and 44(2)(b)

Local Courts Act (Repealed) ss 54(1), 54(2), 286(1)

Ahearn v Wormalds Australia [1994] NTSC 116; (1994) 119 FLR 167 at 179-180, followed

Carr v Finance Corporation of Australia Ltd [1981] HCA 20; [1981] 147 CLR 246 at 248, applied.

Hall v Nominal defendant [1966] HCA 36; (1996) 117 CLR 423 at 440, referred

Jabiluka Aboriginal Land Trust v Stiles [1994] NTSC 9; (1994) 4 NTLR 53 at 58-9, applied.

Jones v Territory Insurance Office [1988] NTSC 52; (1988) 55 NTR 17, referred

Licul v Corney [1976] HCA 6; (1976) 50 ALJR 439 at 444; [1976] HCA 6; (1976) 8 ALR 437 at 446, applied.

LMP v Collins [1993] NTSC 12; (1993) 112 FLR 289 at 300, followed.

Meddings v The Council of the Cityof Gold Coast (1988) 1 Qd R 528 at 536, referred.

Re Coldham; exparte Australian Building Construction Employees' and Builders Labourers' Federation [1986] HCA 87; (1985) 159 CLR 522 at 528, applied.

Salter Rex & Co v Ghosh [1971] 2 QB 597, referred.

Tasker v Fullwood [1978] NSWLR 20 at 24, referred.

Patterson v Northern Territory & Anor [2001] NTSC 93

NORTHERN TERRITORY OF AUSTRALIA and AUDREY PATTERSON

[1] The appellant claims to be the victim of an assault committed by the respondent Audrey Patterson at Tennant Creek on 7 January 1994. On 10 January 2001, the appellant lodged an application in the Local Court for an extension of time within which to apply for an assistance certificate under the Crimes (Victims Assistance) Act. On 28 February 2001, Mr Ward SM dismissed the application. On 27 March 2001, the appellant lodged a notice of appeal to this Court from that decision.

[2] The respondent Northern Territory of Australia (the respondent) entered a conditional appearance to the notice of appeal and has applied to have the appeal struck out as incompetent as the appeal is out of time. The respondent contends that the decision of Mr Ward SM was an order "other than a final order" within the meaning of s19(3) of the Local Court Act which permits an appeal by leave within fourteen days of the order complained of. It was further contended that there is no power to extend the time limited by s19(3) and that this Court has no jurisdiction to entertain the appeal.

[3] The appellant has lodged an amended application for leave to appeal in which the appellant has applied for an extension of time. The application was further amended at the hearing to apply for an extension of time pursuant to s44 of the Limitation Act.

[4] It is not now contended that the order made by Mr Ward SM was a final order within the meaning of s19(1) of the Local Court Act. In Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601, Lord Denning MR said:

This question of "final" or "interlocutory" is so uncertain that the only thing for practitioners to do is look up the practice books and see what has been decided on the point.

There is no decision of this Court precisely on point, but the test has been authoritatively laid down as being whether or not the judgment appealed from finally determined the rights of the parties: see Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246 at 248; Licul v Corney [1976] HCA 6; (1976) 50 ALJR 439 at 444; [1976] HCA 6; (1976) 8 ALR 437 at 446; LMP v Collins [1993] NTSC 12; (1993) 112 FLR 289 at 300; Jabiluka Aboriginal Land Trust v Stiles [1994] NTSC 9; (1994) 4 NTLR 53 at 58-9. There is no doubt that the practical effect of Mr Ward SM's decision is to prevent the appellant from pursuing her right to claim an assistance certificate, but this is not enough. The appellant could apply again if, for example, the application had been dismissed on a technicality; see Meddings v The Council of the City of Gold Coast (1988) 1 Qd R, 528 at 536; Hall v Nominal Defendant [1966] HCA 36; (1996) 117 CLR 423 at 440; Carr v Finance Corporation of Australia Ltd [No 1], supra, at 248, 253-4.

[5] It is clear that the Local Court Act does not make any provision for extensions of time within which to appeal from orders which are not final, although there is such a power where the order is a final order: see s19(1). In LMP v Collins, supra, Kearney J at 299-300 held that the time limit fixed by s19(3) was mandatory and could not be extended.

[6] Counsel for the appellant, Mr Goldflam, submitted that there is power to extend time under s44 of the Limitation Act. Subsections (1) and (2) provide:

(1) Subject to this section, where this or any other Act, or an instrument of a legislative or administrative character prescribes or limits the time for -

(b) doing an act, or taking a step in an action; or

(c) doing an act or taking a step with a view to instituting an action,

a court may extend the time so prescribed or limited to such an extent, and upon such terms, if any, as it thinks fit.

(2) A court may exercise the powers conferred by this section in respect of an action that it -

(b) would, if the action were not out of time, have jurisdiction to entertain.

[7] Section 4(1) of the Limitation Act defines "action" to include "any proceeding in a court of competent jurisdiction". It was submitted that an application for leave to appeal under s19(3) of the Local Court Act was a "proceeding" and that therefore this Court had jurisdiction vide s44(1)(a) and (2)(b) of the Limitation Act. In Ahearn v Wormalds Australia [1994] NTSC 116; (1994) 119 FLR 167 at 179-180, Martin CJ said:

The word "proceedings" is general and quite imprecise (Quazi v Quazi [1979] 3 WLR 402 at 408, 409; [1979] 3 All ER 424 at 429, 430 per Ormrod LJ) and has been held in context of the Service and Execution Process Act 1901 (Cth) as "merely some method permitted by law for moving a court or judicial officer to some authorised act"; as per Isaacs and Gavan Duffy JJ in Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 at 536-537.

In Re Coldham; ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1986] HCA 87; (1985) 159 CLR 522, Gibbs CJ and Wilson and Dawson JJ said, at 528:

The word "proceedings" has frequently been said to have a wide and general application, and it would certainly include an appeal and an application for an amendment or an extension of time.

I consider therefore that the present application by the applicant appellant is a "proceeding" within the meaning of the Limitation Act and that prima facie this Court has jurisdiction to allow an extension of time for leave to appeal under s19(3) of the Local Court Act vide s44(1)(a) and (2)(b) of the Limitations Act.

[8] However, Mr Heitmann for the respondent has referred me to s5 of the Limitation Act which provides:

This Act does not apply to any action for which a period of limitation is prescribed by any other enactment other than an enactment referred to in section 3.

He submitted that the Local Court Act was not an enactment referred to in s3. Therefore, so he submitted, s44 did not apply, notwithstanding that s44(1) specifically applies to "this or any other Act". The definition of "Act" in the Interpretation Act, s18, includes not only Acts passed by the Legislative Assembly since 1978, but Northern Territory Ordinances and Ordinances and Acts of the State of South Australia in their application to the Territory. There is no definition of "enactment" either in the Limitation Act or in the Interpretation Act. However, the "enactments" referred to in s3 include certain Imperial Acts and certain South Australian Acts, as well as certain Acts of the Northern Territory and this supports the view that "enactments" must be given a broad meaning and would include an Act such as the Local Court Act.

[9] Mr Goldflam submitted that the Local Court Act was an enactment referred to in s3. He referred to s3(4) of the Limitation Act which says: "Each Act of the Territory listed in Part IV of the Schedule is, to the extent there indicated, amended". Turning to Part IV of the Schedule, there is reference to the Local Courts Act (omitting other references) as follows:

[10] Mr Goldflam's submission was that at the time the Limitation Act came into force in 1982, the relevant Act establishing the Local Court was the Local Courts Act. This Act provided for appeals to the Supreme Court vide s54 in the case of both final orders (s54(1)) and interlocutory orders (s54(2)). The Local Courts Act was repealed and replaced by the Local Court Act which came into force in 1991. Section 38 of the Local Court Act continued the former Local Courts in existence before 1991 as if they were the Local Court newly established for certain purposes. Section 38(3) provides that:

a reference to a Local Court in an Act, instrument of a legislative or administrative character or other document in force before the commencement of this Act shall be read as including a reference to the Court established by this Act.

Mr Goldflam then relied upon s15(1) of the Interpretation Act which provides:

Where an Act, or a regulation, repeals and re-enacts, with or without modification, any provisions of a former Act, references in any other Act to the provisions so repealed shall be construed as references to the provisions so re-enacted.

[11] The difficulty with this argument, as was pointed out by Mr Heitmann for the respondent, is that s54 of the Local Courts Act (repealed) did not provide any time limits for the bringing of appeals or applications for leave to appeal to the Supreme Court. Until 1991, time limits for such appeals were governed by Rules 83.04 and 83.23 of the Supreme Court Rules. The only time limit referred to in the Local Courts Act (repealed) was in s286(1) which dealt with "proceedings...commenced against any person for anything done in pursuance of this Act...". Apart from s286(1), there was no period of limitation relevantly provided for by the Local Courts Act. Therefore, I do not think it is possible to say that, in terms of s15 of the Interpretation Act, s5 of the Limitation Act referred to s54 of the Local Court Act which was replaced by s19 of the Local Court Act for the simple reason that s54 was not a section that, within the terms of s5 of the Limitation Act, prescribed a period of limitation. I therefore must find, regrettably, that there is no power to extend the time limited by s19(3) of the Local Court Act whether by use of s44 of the Limitation Act or otherwise.

[12] Mr Goldflam's alternative argument was that the time limited by s19(3) was not mandatory and he invited me to draw a different conclusion from that arrived at by Kearney J in LMP v Collins, supra. Mr Goldflam did not expand upon this submission other than to impress upon me that Kearney J's remarks were obiter. In Jones v Territory Insurance Office [1988] NTSC 52; (1988) 55 NTR 17, Asche CJ reviewed a number of authorities which support the general proposition that statutory time limits for the bringing of an action or for the bringing of an appeal must generally be strictly complied with. Nevertheless, the modern approach is one of construction of the statute: see Tasker v Fullwood [1978] 1 NSWLR 20 at 24. In this case, the Act specifically permits an extension of time where there is an appeal from a final order, but makes no similar provision where the order appealed from is not final. I consider that on the true construction of s19(3) of the Local Court Act, the time limit of fourteen days must be strictly complied with subject only, perhaps, to cases of impossibility.

[13] The respondent's application to dismiss the appeal is therefore granted and the appellant's application for an extension of time within which to apply for leave to appeal is dismissed. The applicant must pay the respondent's costs to be taxed. I certify fit for counsel. There will be orders accordingly.