- Unreported Judgment
COURT OF APPEAL
Appeal No 3970 of 2002
ACI OPERATIONS PTY LTD
ACN 004 230 326
VICTOR EDWARD BAWDEN
McPHERSON JA: The plaintiff, who is the respondent in this Court to an application for leave to appeal from the District Court, originally applied in the Magistrates Court for an order under s.31 of the Limitation of Actions Act 1974 extending the time within which to bring proceedings. The proceedings he wished to bring were to recover damages for industrial deafness which he alleged he had sustained in the course of his employment with the defendant in what was admittedly a noisy environment.
The Magistrate refused the application. In doing so he found the plaintiff in the application before him to have been "a less than forthright witness", and he expressly preferred the evidence of the defendant's witnesses where, in relation to what had happened, it differed from that of the plaintiff. It is not, in my view, necessary here to condescend to the details of that evidence on the facts generally, which are matters more appropriately for submission upon the appeal if any is permitted in this case.
The plaintiff then successfully appealed to the District Court, where the appeal was allowed and the time was extended by the learned District Court Judge. That appeal to the District Court was undertaken pursuant to s.45(1) of the Magistrates Court Act 1921. That provision, at any rate where the amount involved in the action is more than $5,000, as it is here, provides what I will, for convenience, call an open-ended appeal. It is an appeal of that description in the sense that it is available as of right. It is, however, governed by the general law that regulates appeals in the ordinary way as it has been ever since the introduction of the Judicature Act procedure with respect to such appeals.
From the decision that follows under that section, there is then, pursuant to s.118 of the District Court Act 1967, the possibility of a further appeal to this Court. Unlike the appeal from the Magistrates Court, however, that appeal to this Court is not an appeal as of right but one that may proceed only by leave of this Court, which, because the matter of that leave is discretionary, is predicated on first obtaining the exercise of that discretion in favour of the application for leave to appeal.
Until some time ago, the discretion under s.118 was exercisable only if the applicant established that the appeal involved an important point of law or some question of general or public importance. The need to satisfy that requirement was deliberately omitted by an amendment to s.118(3) that was effected to the Act in mid-1997. It had the consequence of conferring a general discretion on this Court to grant or refuse leave to appeal, which is exercisable according to the nature of the case. I would, however, tend to agree with what Mr Boulton, for the respondent plaintiff in this matter, has said, namely that the mere fact that there has been an error, or that an error can be detected in the judgment below, is not ordinarily by itself sufficient to justify the granting of leave to appeal.
It also, to my mind, does not mean that the former criterion in s.118 of an important point of law or question of general or public importance is entirely irrelevant to applications of this kind. It may be expressed by saying that the existence of such a consideration remains a sufficient, but not a necessary, prerequisite to a grant of leave to appeal.
I doubt if the present case satisfies the description that I have used. The amount involved is relatively small, it is only some $20,000 that is claimed. It would, in my view, be wrong to involve the parties, and especially the plaintiff in this case, in the expense of a further and full-scale appeal to this Court in a matter in which the plaintiff is opposed by a corporation, or possibly its insurer, which may be assumed to have much greater resources to pursue an appeal of this kind.
That, however, is a matter that may, at least in part, be accommodated by an appropriate order as to costs if leave to appeal is granted. What, however, does concern me here is that, in reversing the decision of the Magistrate in a matter that turned ultimately on an exercise of discretion at first instance, the learned Judge appears, at least on a summary reading of his reasons, to have disregarded the Magistrate's findings as to credibility.
His Honour said that he would regard himself as bound by the Magistrate's determination of such issues "unless cogent reason not to do so was shown". That does not, to my mind, altogether accord with the principles governing the proper approach to credibility findings on appeal, as those principles have been more than once laid down by the High Court in several recent cases, such as De Vries v. Australian National Railway Commission (1993) 177 CLR 472.
What is equally if not perhaps more important is that his Honour, in disposing of the appeal, does not seem to have applied the approach which he himself stated he was adopting. He found that the Magistrate should have been satisfied that the plaintiff was unaware of the extent of the impairment of his hearing and that he had in all the circumstances taken reasonable steps to ascertain the facts at the relevant time.
I do not at present see how, consistently with the Magistrate's credibility findings, his Honour could have reached that conclusion. It appears to involve implicitly, at least, an unexplained rejection of the evidence of the defendant's witnesses and an acceptance of the evidence of the plaintiff, whom, it will be recalled, the Magistrate, after seeing him cross-examined at length, had described as a less than forthright witness.
Mr Boulton attempted, by reference to some of the detail in the record at first instance, to persuade us that the District Court Judge's conclusion was justified on the evidence. His submissions to that effect are however not reflected in the way in which the District Court Judge approached the issue so far as can be seen from his reasons on this point. If such matters are to be argued in the kind of detail that appears to be necessary to sustain them in that way, then it is my impression that the issue should go to appeal so that the detail can be considered on that occasion and not an application like this. If it turns out on appeal that Mr Boulton's explanation of his Honour's reasoning is correct, then the appeal will no doubt be dismissed. However, in the interests of ensuring that, in appeals like this from the Magistrates Court to the District Court, the integrity of well-settled principles governing appellate attitudes to credibility findings are maintained, I would grant leave to the applicant defendant to appeal against the decision of the District Court allowing the appeal from the Magistrate.
I would, however, make it a condition of granting leave to appeal that the applicant defendant should bear its own costs of this application and of the appeal in any event. That is to say that, whatever the outcome of the appeal, the applicant defendant should not in any event be entitled, as against the respondent plaintiff, to the costs of and incidental to this application and of the appeal that will follow.
That is the order that I would make in this application.
WILLIAMS JA: I agree.
HOLMES J: I agree.
McPHERSON JA: Mr Grant-Taylor, I don't know if there's anything I've missed from the formal order. Should I be saying something else as well?
MR GRANT-TAYLOR: Only to extend the time within which the appellant might file its notice of appeal until, perhaps, your Honour, the 9th of August.
McPHERSON JA: Yes, there will be an order to that effect.
Those are the orders that will be made in this case.
- Published Case Name:
ACI Operations Pty Ltd v Bawden
- Shortened Case Name:
ACI Operations Pty Ltd v Bawden
 QCA 286
McPherson JA, Williams JA, Holmes J
06 Aug 2002
No Litigation History