ATTORNEY GENERAL OF NEW SOUTH WALES and ANOR v CIVIC TRANSPORT SERVICES PTY LTD [1998] NSWCA 20

ATTORNEY GENERAL OF NEW SOUTH WALES v_ CIVIC TRANSPORT SERVICES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and SHELLER JJA 28 October 1998, 8 December 1998 [1998] NSWCA 20

Justices Act, 1902 s101(1), s102A — Clifford Air Conditioning Pty Ltd v Stirling Ventilation Pty Ltd (1984) 2 NSWLR 527 — Saddi v Saddi (Supreme Court of New South Wales, 1 June 1995, unreported) — Interpretation Act, 1902 s36(3)

FACTS

The claimant seeks declaratory and mandatory orders on appeal from a judgment of Bruce J against a learned magistrate, the second claimant. The learned magistrate made an order against the opponent in proceedings brought in the Local Court (Civil Claims) by the claimant, which claim the opponent substantially defended. The opponent sought review of the order pursuant to s101(1) of the Justices Act, 1902 and sought a stated case by way of summons filed outside the prescribed period, which review was declined by the learned magistrate on grounds that the application was out of time. The opponent sought a mandamus and successfully argued before Bruce J that the time limits set out in s101(1) and s102A were directory not mandatory. The claimants seek leave to appeal by way of summons filed out of time.

HELD

By Meagher JA:

The trial judge misdirected himself in the meaning of s101 and sl02A of the Interpretation Act, 1902, Saddi v Saddi (Dunford J, New South Wales Supreme Court, 1 June 1995, unreported) affirmed; Clifford Air Conditioning Pty Ltd v Stirling Ventilation Pty Ltd (1984) 2 NSWLR 527 misapplied.

By Sheller JA, Handley JA agreeing:

$36(3) of the Interpretation Act, 1987 deals with the power to extend the prescribed period of time. However, the section on appeal does not deal with extension of the prescribed time limit but with the right to make an application within a prescribed time period. In all the circumstances, the time for filing the application should be extended. S5(2) of the Interpretation Act 1987 applies to an Act "except in so far as the contrary intention appears in the Act concerned" which contrary intention is clear in s101(1) and s102A of the Justices Act, 1902.