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. Meagher JA This is an appeal from Bruce J, who had to deal with an application for declaratory and mandatory orders against a learned magistrate, Mr Geoffrey Edward Bradd. Mr Bradd had presided over proceedings No 54417 of 1992 in the Local Court (Civil Claims). Those proceedings had been brought by a company called Nucleus Business Systems Pty Ltd ("Nucleus") against another company called Civic Transport Services Pty Ltd ("Civic") in the sum of $26,900 for goods and services rendered. His Worship held that the claim failed, but held that Civic owed Nucleus $200 arising out of the same facts. He ordered Civic to pay Nucleus' costs of $200. The hearing of the proceedings took place before his worship on 18, 19 and 20 July 1994, and 8 and 9 September 1994, thereby occupying five hearing days. His worship's orders were made on 27 November 1994. 2 UNREPORTED JUDGMENTS Civic was dissatisfied with the orders, and by letter dated 17 January 1995 requested Mr Bradd to state and sign a case "pursuant to s101 of the Justices Act, 1902." That request was declined on the grounds that it was "lodged outside the prescribed time and there is no provision for extending that time once it has expired". Prima facie this would seem to be correct, as s101(1) of the Justices Act requires such a request to be made, if at all, within 35 days of the decision. Civic's report was 15 days outside that 35 day limit. It would be desirable to set out the relevant statutory provisions in full. $101(1) is as follows: "Any party to the proceedings, if dissatisfied with the determination by a Justice or Justices in the exercise of their summary jurisdiction of any information or complaint as being erroneous in point of law may, within 35 days (or such longer period as may be fixed under s102A(1) in respect of the party) after such determination, apply in writing to the said Justice or Justices to state and sign a case, setting forth the facts and grounds of such determination for the opinion thereon of the Supreme Court." $102 is as follows: (1) The appellant shall, within 42 days (or such longer period as may be fixed under s102A(2) in respect of the appellant) after the determination appealed from, enter into a recognizance before a Justice or Justices, with or without sureties, and in such sum as to such Justice or Justices may seem meet, conditioned to prosecute such appeal without delay, and to submit to the judgment of the Supreme Court and pay such costs as may be awarded by such Court. (2) Before any such appellant shall be entitled to have the case delivered to him he shall pay to the Clerk of the Local Court his fees for and in respect of such case and recognizances, and all other fees to which such clerk is entitled. (3) If the appellant, not being an accused person, is in custody he shall be liberated upon the recognizance mentioned in subs(1) being further conditioned for his appearance before the same or such other Justice or Justices as may then be sitting within ten days after judgment has been given by the Supreme Court to abide such judgment, unless the determination appealed against is reversed. (4) If the appellant, being an accused person, is granted bail in accordance with the Bail Act 1978, he shall not be released on bail unless, in his bail undertaking, he undertakes to appear before the same or such other Justice or Justices as may then be sitting within 10 days after judgment has been given by the Supreme Court to abide such judgment, unless the determination appealed against is reversed." S102A is as follows: (1) A Justice may, by order made within 35 days after the determination of any information or complaint by any Justice or Justices exercising summary jurisdiction, fix a period of more than 35 days for an application to be made under s101(1) by a party, in relation to that determination. (2) A Justice may, by order made within 42 days after the determination of any information or complaint by any Justice or Justices exercising summary jurisdiction, fix a period of more than 42 days for a recognizance to be entered into under s102(1) by an appellant, in relation to that determination. (3) No Justice other than a magistrate shall exercise the power conferred by subcl(1) or subcl(2)." UWRTORNEY GENERAL OF NEW SOUTH WALES v CIVIC TRANSPORT SERVICES PTS LTD (Meagher JA) Civic then, by summons, took out the current proceedings before Bruce J. It sought a declaration that Mr Bradd had jurisdiction to extend the time for applying for a case stated, on the basis that the time limits in both s101(1) and s102A were directory, not mandatory, and for an order in the nature of a mandamus ordering him to do so. For reasons which I cannot understand, the Attorney-General, the present appellant, was permitted to intervene. Civic was successful before Bruce J, who held that the provisions of s101(1) and s102A were directory only and not mandatory. For this proposition he relied on a decision of Hodgson J in Clifford Air Conditioning Pty Ltd v Stirling Ventilation Pty Ltd (1984) 2 NSWLR 527. He disregarded a decision of Dunford J in Saddi v Saddi (Supreme Court of NSW, | June 1995, unreported) to the contrary. His Honour also placed some reliance on s36(3) of the Interpretation Act as a source of power to extend the 35 day period set down in s101(1), in this regard holding that s5(3) of the Interpretation Act did not have any operation because sl102A did not manifest a "contrary intention" within the meaning of that subsection. On appeal to this Court (which was by leave), the Attorney-General submitted that Bruce J misdirected himself in his analysis of s101 and s102A. This must be correct. No occasion arose for considering whether their provisions were mandatory or directory. No occasion arose for considering whether substantial compliance with them was sufficient, assuming there was substantial compliance in the present case. Dunford J was perfectly correct in Saddi v Saddi (supra). There is no reason to suppose their plain words do not mean what they say. This also accords with the rules of construction approved by the High Court in related contexts: see Project Sky Blue Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 515-517 and David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265. His Honour's reliance on Clifford Air was misguided, as that case deals with neither s101(1) nor s102A, but with s102, which is concerned with the provision of security and the payment of costs in an appeal already instituted - a far cry from sections which dictate a temporal barrier governing the institution of judicial proceedings. Nobody defended his Honour's reliance on the Interpretation Act. It is not difficult to see why. It is my melancholy duty to address one more aspect of this appeal. The decision of Bruce J was dated 8 April 1998. The Attorney General's present application for leave to appeal was filed on 23 July 1998. Thus the application of the Attorney-General was hopelessly out of time. Not only was the Court thus confronted by an application to enforce time limits in the Local Courts when the application itself complied with no time limit, but there was virtually no explanation why the Attorney-General chose to disregard those time limits. The closest he came was the following effulgence of officialese contained in a paragraph in an affidavit sworn by a Miss R M Felton, one of his minions: "T have been informed by Mr Stephen Eccleshall of the Attorney General's Department and I verily believe that the delay by the First Claimant in deciding whether to seek leave to appeal against the decision of Justice Bruce was due to the need to clarify and obtain further information in relation to the decision of Bruce J and the time taken in processing the matter having regard to other competing demands on the Department's finite resources." 4 UNREPORTED JUDGMENTS No further comment need be made on either the clarity or the force of that assertion. I would merely state that it is a tribute to the charity of the Court that it did grant leave. But I do not see why the Attorney General should have his costs. The orders which I propose are as follows: 1. Time for filing an application for leave to appeal be extended until 23 July 1998. 2. Order that leave to appeal be granted. 3. Order that the appeal be allowed. 4. Order that the orders made by Bruce J on 30 April 1998 be set aside. 5. Order that the Attorney General pay the costs of the respondent, Civic Transport Services Pty Ltd of the application for an extension of time and of the application for leave to appeal. Handley JA I agree with Sheller JA. Sheller JA I have had the benefit of reading the judgment in draft of Meagher JA and agree with the orders he proposes. It is unnecessary to repeat the background facts and legislative provisions which his Honour has set out. S101(1) of the Justices Act 1902 allows a party to the proceedings, if dissatisfied with the determination by a Justice or Justices in the exercise of their summary jurisdiction of any information or complaint as being erroneous in point of law, within a prescribed period after the determination, to apply to the Justice or Justices to state and sign a case. The period prescribed is 35 days or such longer period as may be fixed under s102A(1) in respect of the party. S102A enables a Justice, by order made within a prescribed period, to fix a period of more than 35 days for an application to be made under s101(1) by a party, in relation to the determination of any information or complaint by any Justice or Justices exercising summary jurisdiction. The period prescribed is 35 days after the determination. No order pursuant to s102A(1) was made within the 35 day period. Once the period prescribed in s101(1), that is to say 35 days after the determination, had elapsed there was no source within s101(1) from which the respondent could derive the right to apply to have a case stated. With the expiry of the period went the right; compare David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 279; Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 130. S36(3) of the Interpretation Act 1987 enables a power, conferred on any person or body to extend a prescribed period of time for the doing of something, to be exercised or, if the exercise of the power depends on the making of an application for an extension of a period of time, such application to be made, after the period of time has expired. In the present case, we are concerned primarily not with a power to extend but with the right of a person to make an application within a prescribed period and not otherwise. In any event, s5(2) of the Interpretation Act provides that the Act applies to an Act "except in so far as the contrary intention appears in the Act concerned". The contrary intention in s101(1) and s102A(1) is clear. The appellant was well out of time in filing his application for leave to appeal. The evidence explaining the delay was unsatisfactory. However, the subject matter of the appeal is of general importance. In all the circumstances, I am satisfied that the time for filing the application should be extended. As I have said, I agree with the orders Meagher JA proposes. URJORNEY GENERAL OF NEW SOUTH WALES v CIVIC TRANSPORT SERVICES PTS LTD (Sheller JA) 1. Time for filing an application for leave to appeal be extended until 23 July 1998. Order that leave to appeal be granted. Order that the appeal be allowed. Order that the orders made by Bruce J on 30 April 1998 be set aside. Order that the Attorney General pay the costs of the respondent, Civic Transport Services Pty Ltd of the application for an extension of time and of the application for leave to appeal. ol wRWN 49 Counsel for the appellant: J Griffiths Solicitors for the appellant: I V Knight, Crown Solicitor Counsel for the respondent: I Faulkner 15 Solicitors for the respondent: Glasson Gemmell & McGill