Schiliro v Peppercorn Child Care Centres Pty Ltd
[1998] QCA 446
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- Unreported Judgment
- Appeal Determined (QCA)
- Schiliro v Peppercorn Child Care Centres Pty Ltd[1998] QCA 446
- Add to List
Schiliro v Peppercorn Child Care Centres Pty Ltd[1998] QCA 446
Reported at [2000] 2 Qd R 83
Schiliro v Peppercorn Child Care Centres Pty Ltd[1998] QCA 446
Reported at [2000] 2 Qd R 83
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9640 of 1998
Brisbane
[Schiliro v Peppercorn Child Care Centres P/L]
BETWEEN:
LISA MARIE SCHILIRO
(Plaintiff) Applicant
AND:
PEPPERCORN CHILD CARE CENTRES PTY LTD
ACN 061 613 698
(Defendant) Respondent
Pincus JA
Thomas JA
White J
Judgment delivered 22 December 1998.
Separate reasons for judgment of each member of the Court: Thomas JA and White J concurring as to the orders made; Pincus JA dissenting.
APPLICATION FOR LEAVE TO APPEAL DISMISSED. TIME TO FILE AND SERVE NOTICE OF APPEAL EXTENDED TO 15 JANUARY 1999. APPLICANT TO PAY RESPONDENT’S COSTS OF THE APPLICATION TO BE TAXED, IN ANY EVENT.
CATCHWORDS: PRACTICE - whether leave to appeal required when judgment for defendant but assessment of damages less than jurisdictional limit - appeal as of right - s. 118(2)(a) and (b) District Court Act 1967.
Amos v Fraser (1906) 4 CLR 78
Bear v Lockyer (1915) 19 CLR 288
Cole v The Commonwealth (1961) 106 CLR 653
Graham v Roberts & Muller [1956] St R Q 459
Jenkins v Lan Franchi (1910) 10 CLR 595
Lambos v The Commonwealth (1967) 41 ALJR 180
Mitchell v Clancy (1960) 107 CLR 86
Moller v Roy (1975) 132 CLR 622
Turner v Bulletin Newspaper Co Pty Ltd (1974) 48 ALJR 58
Courts Reform Amendment Act 1997, s. 47
District Court Act 1967, s. 118
Judiciary Act 1903, s. 35
Workplace Health & Safety Act 1989, s. 9
Counsel: Mr R F King-Scott for the applicant.
Mr B L P Hoare for the respondent.
Solicitors: Shepherds Lawyers for the applicant.
O'Mara, Patterson & Perrier for the respondent.
Hearing Date: 30 November 1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9640 of 1998
Brisbane
Before Pincus J.A.
Thomas J.A.
White J.
[Schiliro v. Peppercorn Child Care Centres P/L]
BETWEEN:
LISA MARIE SCHILIRO
(Plaintiff) Applicant
AND:
PEPPERCORN CHILD CARE CENTRES PTY LTD
(ACN 061 613 698)
(Defendant) Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 22 December 1998
- This is an application for leave to appeal under s. 118(3) of the District Court Act 1967, against a District Court judgment dismissing an action for damages for personal injuries; the applicant had claimed $200,000. Under s. 118(2) of that Act:
"(2) A party who is dissatisfied with a final judgment of a District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment-
- (a)is given-
(i) for an amount equal to or more than the Magistrates Courts jurisdictional limit; or
(ii) in relation to a matter at issue with a value equal to or more than the Magistrates Courts jurisdictional limit; or
- (b)involves directly or indirectly any claim, demand or question in relation to any property or right with a value equal to or more than the Magistrates Courts jurisdictional limit".
- If there is a right of appeal, the application for leave should be dismissed. The question is whether it should be held that the judgment in question was given in relation to a matter at issue with a value of $50,000, or involves a claim in relation to a right with a value of $50,000. Similar problems were considered by the High Court under the former s. 35 of the Judiciary Act 1903 (Cth) ("s. 35"), which gave the High Court appellate jurisdiction in respect of certain judgments, partially defined as follows:
"(1) . . .
(a) Every judgment, whether final or interlocutory, which-
- is given or pronounced for or in respect of any sum or matter at issue amounting to or of the value of Twenty thousand dollars; or
- involves directly or indirectly any claim, demand, or question, to or respecting any property or any civil right amounting to or of the value of Twenty thousand dollars;
. . . ".
- The money sum mentioned in the section had been increased from time to time. It will be seen that s. 35(1)(a)(1) covered ground similar to that covered by s. 118(2)(a)(i) and (ii), and that s. 35(1)(a)(2) was very similar in wording to s. 118(2)(b). A question which was discussed in the High Court was how one assessed the value of the matter at issue or of the claim, for the purposes of s. 35. In Bear v. Lockyer (1915) 19 C.L.R. 288, a sale of goods case, an action was brought for more than £300 damages, at a time when the figure of £300 appeared in the places in s. 35 where $20,000 was later inserted. The action failed and the High Court held there was no right of appeal because on the evidence it would have been impossible for the plaintiff to recover £300.
- In Mitchell v. Clancy (1960) 107 C.L.R. 86, a plaintiff’s appeal in a personal injury case was dismissed. Only McTiernan J. discussed the question of the competency of the appeal and in doing so his Honour appeared to assume that the amount claimed in the action was the sum involved in the appeal. In Cole v. The Commonwealth (1961) 106 C.L.R. 653, a plaintiff sought to appeal on the ground that the damages awarded in a personal injury case were inadequate. The claim in the writ was for £10,000 and the sum mentioned in s. 35(1)was then £1,500. In holding that there was a right of appeal the court said:
"The plaintiff points in the first instance to the claim in her writ of £10,000, but we need not decide in the present case that a claim in a writ should be given any absolute effect. We may concede that amounts named in writs may be quite unreal. In the present case it is plain enough, however, that what the plaintiff really seeks to establish by a new trial is a bona fide claim to damages which might readily be assessed at £1,500 more than £1,322". (656)
The latter figure was the amount awarded at trial.
- In Lambos v. The Commonwealth (1967) 41 A.L.J.R. 180, the defendant succeeded, in a claim for damages for personal injuries. Holding that there was a right of appeal in the plaintiff, Barwick C.J. with whom the other members of the Court agreed, said:
"Having regard to the nature of the injuries which, according to the evidence, the appellant sustained in the incident in respect of which he claims damages . . . it seems to me most probable that had a verdict been found for the appellant, it would have been for a sum in excess of $3,000". (180)
That was the sum then mentioned in s. 35. According to a note in (1974) 48 A.L.J.R. 58, in Turner v. Bulletin Newspaper Co. Pty Ltd an objection to the competency of an appeal was allowed on the grounds that first, it was not thought that in an action for defamation it is possible to place a value on the right asserted and, secondly, that the material before the court would not permit of a conclusion that the civil right involved was of the necessary value. The appeal in question was to be against the striking out of the statement of claim in an action for defamation. In Moller v. Roy (1975) 132 C.L.R. 622, there was an appeal by a plaintiff in a personal injury case on the ground that the damages were inadequate. The question was whether, within the meaning of a statute governing appeals from the Northern Territory, provisions corresponding with ss. 35(1)(a)(1) and (2) gave a right of appeal. There were two bases on which the matter was considered. First, judgment had been given below for a sum in excess of $3,000, that then being the relevant sum. Secondly, the question whether the amount claimed in the action should be regarded as the test was discussed, by Barwick C.J. As to the latter point, Barwick C.J. said in effect that in determining the value of a matter one looks "at the pleadings or, if no pleadings, to the substance of the proceedings in the court in which the judgment was given". (627) Then, his Honour in a passage at 628, favoured the view that it is the amount claimed which must be compared with the amount recovered, in order to determine whether there is a right of appeal. The judge also said, with respect to the word "value":
"That value will not be the market value of the plaintiff’s action for damages, but the amount which the plaintiff might reasonably expect to recover, negligence being established. In my opinion, the amount claimed in the writ, prima facie, might be accepted as the value of that right . . . unless by evidence it is shown either not to be a bona fide statement of what the plaintiff genuinely expects to recover, or to be wholly unrelated to the extent of the injuries received and which could not reasonably found a verdict for more than $3,000." (632)
McTiernan J. agreed with these reasons.
- It does not appear to me that, in this state of authorities, the Court is compelled to hold that a plaintiff who is unsuccessful in a claim for $50,000 in the District Court has an absolute right of appeal to this Court, or that such a plaintiff has a prima facie right of appeal as would seem to follow from what was said by Barwick C.J. in Cole v. The Commonwealth, or that the amount claimed is simply irrelevant. It is my opinion that if the amount claimed has any relevance it is not necessarily of great significance. It appears that, in personal injury claims in the District Court, the amount of the jurisdictional limit of that court is commonly claimed. I do not see that the statement of such a claim shows or tends to show that the claim has a value of the sum claimed. If we were to attribute to the word "value", in such a case as this, the meaning "sum claimed", it would be in my respectful opinion an unusual interpretation to give to the word, particularly when one keeps in mind that it would have been simple enough for the legislature to give a right of appeal from the District Court based on the "sum sued for", as existed prior to the Courts Reform Amendment Act 1997. Further, the practical result of such a holding, so far as personal injury claims are concerned, would be to give unsuccessful plaintiffs a more ample right of appeal than that accorded to unsuccessful defendants, in the smaller cases.
- Here, the judge assessed damages at a figure of $11,250.12. That sum, the applicant says, is manifestly inadequate; but there is nothing in the circumstances, nor in the submissions made, to suggest that the applicant is likely, if allowed to appeal, to recover as much as $50,000. I am of the view that there is no right of appeal. Nor on the facts, does it appear to be "reasonably arguable that a right of appeal under this section exists", within the meaning of s. 118(5) of the District Court Act.
- I am of opinion, however, that the application for leave to appeal should be allowed. The reasons given by the primary judge give rise to questions of some significance as to the effect of s. 9(1) of the former Workplace Health and Safety Act 1989. Although that statute was repealed in 1995, it is likely that its effect will fall for consideration in litigation, not yet disposed of, often enough to make it desirable that this Court consider the case.
- I would grant the application for leave to appeal and order that the costs of that application be costs in the appeal.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9640 of 1998
Brisbane
Before Pincus JA
Thomas JA
White J
[Schiliro v Peppercorn Child Care Centres P/L]
BETWEEN:
LISA MARIE SCHILIRO
(Plaintiff) Applicant
AND:
PEPPERCORN CHILD CARE CENTRES PTY LTD
(ACN 061 613 698)
(Defendant) Respondent
REASONS FOR JUDGMENT - THOMAS JA
Judgment delivered 22 December 1998
- This application raises the proper construction of s 118(2) of the District Court Act 1967. The question is whether the applicant has an appeal as of right against a judgment given in the District Court, or whether she needs leave to appeal.
- Section 118 includes the following:
"(2) A party who is dissatisfied with a final judgment of a District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment-
- is given-
- for an amount equal to or more than the Magistrates Courts jurisdictional limit; or
- in relation to a matter at issue with a value equal to or more than the Magistrates Courts jurisdictional limit; or
- involves directly or indirectly any claim, demand or question in relation to any property or right with a value equal to or more than the Magistrates Courts jurisdictional limit.
- A party who is dissatisfied with any other judgment of a District Court, whether in the court's original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that Court.
- In deciding whether there is a right of appeal under this section, the Court of Appeal may-
- inform itself in any way it considers appropriate, including by reference to the appeal record; and
- decide the question summarily without hearing evidence.
- If it is reasonably arguable that a right of appeal under this section exists, the Court of Appeal may treat that circumstance as a ground for granting leave to appeal...
- In this section-
...
'Magistrates Courts jurisdictional limit' means the amount of the jurisdictional limit of Magistrates Courts for personal actions stated in the Magistrates Courts Act 1921 s 4(a)".
- The applicant claimed $200,000.00 damages in the District Court for negligence and breach of statutory duty. She failed on both counts, and the learned District Court Judge, who assessed damages in any event, concluded that the quantum of the plaintiff's damages was $29,645.31, and that after deduction of the Workcover refund the nett assessment was $11,250.12. In the event then the plaintiff's action was dismissed, and the judgment from which she appeals is not a judgment given for any amount at all. In such a case an unsuccessful plaintiff cannot come to this court by right under s 118(2)(a). Attention therefore needs to be directed to s 118(2)(b).
- If s 118(2)(b) could be regarded as free from authority, I should have no hesitation in concluding that this applicant is covered by those words and therefore has a right of appeal. This is because "the judgment..involves..[a] claim..in relation to any..right with a value..more than the Magistrates Courts jurisdictional limit". There is some awkwardness in the notion of a judgment "involving" a claim, but clearly a judgment given upon a claim must be regarded as involving it directly or indirectly. Again, a "claim in relation to a right with a value" of $50,000.00 or more would in my view be satisfied by a claim of $200,000.00 for damages for negligence. The "right" referred to in s 118(2)(b) prima facie includes a right of action, and the words "right with a value" qualify the word "claim". If there is a claim for damages of $50,000.00 or more, prima facie there is a right of appeal against any final judgment in respect of that claim.
- That is the position as it was under the former s 118 before it was amended by the Courts Reform Amendment Act 1997. Prior to that amendment an appeal was conferred by right "in an action or matter in which the sum sued for exceeds" (a specified amount). That however was replaced with the present provision, where the first category of appeals (i.e. those conferred by s 118(2)(a)) depends on the amount for which the judgment is "given". This is then followed by the wider and more general provision in s 118(2)(b). The amendment seems to have been largely taken from the former s 35(1)(a) of the Judiciary Act.
- It may be noted that appeals from decisions of magistrates under the Magistrates Courts Act 1921, may be brought under s 11 of that Act (originally to the Supreme Court but now to the District Court) in actions in which the amount "involved" exceeds the stated amount. Those words were construed by Hanger J in Graham v Roberts & Muller[1] as referring to the amount in issue, that is to say the amount that one party claimed against the other. His Honour also considered that the amount involved in the action was the sum of the respective claim and counter claim. There was therefore a consistency between the systems of appeal from those respective courts although the statutory formulae were different.
- The question remains whether in view of the close resemblance between the present provision and the former s 35 of the Judiciary Act, there are decisions of the High Court which would require these words to be construed differently from what I would consider to be their literal meaning. In this exercise I have the benefit of having read the reasons prepared by Pincus JA. It would seem that there has never been a satisfactory or authoritative interpretation given to the words of that section although some of the multiple situations that could arise have been determined by the High Court. Some of the earlier decisions[2] seem, with respect, to have given undue weight to decisions in the UK based upon different legislation. Considerable assistance is available however in the more recent decisions of Cole v The Commonwealth[3] and Moller v Roy[4] dealing with claims for damages where the amount recovered was less than the amount claimed. Relevant extracts from the cases have been cited by Pincus JA. I do not think that the two portions of s 35(1)(a) of the Judiciary Act (which roughly equate with s 118(2)(a) and 118(2)(b) of the District Court Act) permit a tidy division so that the former provision is taken to relate to money judgments and the other to non-money judgments. While neither of these two cases is directly in point, the statements of Barwick CJ with whom McTiernan J agreed, and which received qualified support from Stephen J,[5] suggest that there is a prima facie right of appeal in favour of a plaintiff in the present situation. Furthermore, the reasoning of the court in Cole v The Commonwealth (Dixon CJ, Windeyer J and Owen J)[6] suggests a wide interpretation of the words "matter at issue" in the counterpart of s 118(2)(a)(ii). The only basis for the court's statement in that case that "ex-hypothesi the matter at issue as it is at least £1,500" was the fact that an amount greater than that had been claimed. The court continued "Why is not the order given or pronounced in respect of that matter? There seems no good reasons for restricting the interpretation of the words so as to exclude such a case".
- It would seem that to the extent to which High Court authority exists under s 35(1) of the Judiciary Act, it tends to support the conclusion that the present circumstances would confer upon the applicant an appeal as of right, or at least a prima facie appeal as of right.
- In Moller v Roy above Murphy J having observed that the numerous decisions under s 35 of the Judiciary Act were "not all reconcilable", looked at the relevant statutory provision "apart from previous decisions" and determined that the application of its words in that instance was "quite clear"[7]. Such an approach is not unreasonable in the present state of the authorities.
- It seems to me that there is no binding construction which we have inherited in relation to the words our legislature has adopted similar to those of s 35 of the Judiciary Act.
- I am not attracted by any construction of the words which requires the Court of Appeal to second guess the validity of the judgment appealed from, at least in the course of the exercise of determining whether an appeal lies as of right. I confess to a difficulty with any suggestion that requires the appeal court to engage in speculation as to the prospects of success of the appeal in order to determine whether the necessary value is shown to exist. There will of course be cases where value judgment is necessary in the determination of the value of property which is in issue but that it is not necessary when any actual amount has been claimed. I acknowledge that whichever construction is adopted difficulties of construction emerge. It seems to me however that to confine an appeal as of right to the amount of the judgment actually given in a money claim would place any plaintiff under a disadvantage if the claim were erroneously dismissed or under-assessed, while the defendant would readily qualify for an appeal as of right if an erroneously high assessment were made. I acknowledge that a plaintiff may obtain a right of appeal by over claiming to a ridiculous extent, but note that at least in that case the right of appeal exists for both parties. On balance I think the construction that places primary reliance on the amount claimed is more satisfactory than one which requires the court to perform an exercise in valuation. That in my view is the natural meaning of the words in s 118(2)(b).
- I would therefore hold that the applicant has a right of appeal and that the orders should be those proposed by White J.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9640 of 1998
Brisbane
Before Pincus JA
Thomas JA
White J
[Schiliro v Peppercorn Child Care Centres P/L]
BETWEEN:
LISA MARIE SCHILIRO
(Plaintiff) Applicant
AND:
PEPPERCORN CHILD CARE CENTRES PTY LTD
ACN 061 613 698
(Defendant) Respondent
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 22 December 1998
- The applicant seeks leave to appeal pursuant to s. 118(3) of the District Court Act 1967 against the decision of a District Court judge dismissing her claim for damages based on negligence and breach of statutory duty in the workplace. The applicant submits that she needs leave to appeal because the assessment of damages made by the learned trial judge was for $11,250.12, less than the Magistrates Courts jurisdictional limit of $50,000. The respondent contends that leave is not required since the action involves a matter with a value equal to or more than the Magistrates Courts jurisdictional limit and an appeal may be had as of right.
- Although the pleadings are not before the court, the court was informed that the applicant claimed $200,000 as damages for negligence and breach of statutory duty in the plaint.
- Section 118 in its present form was introduced by s. 47 of the Courts Reform Amendment Act 1997 and differs from provisions for civil appeals which had hitherto been in place. The present section relevantly provides
“(2) A party who is dissatisfied with a final judgment of a District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment -
- is given -
- for an amount equal to or more than the Magistrates Courts jurisdictional limit; or
- in relation to a matter at issue with a value equal to or more than the Magistrates Courts jurisdictional limit; or
- involves directly or indirectly any claim, demand or question in relation to any property or right with a value equal to or more than the Magistrates Courts jurisdictional limit.
(3) A party who is dissatisfied with any other judgment of a District Court, whether in the court’s original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that court.”
- The provision relating to appeals from final judgments of a District Court which appeared in the 1958 Act which re‑established District Courts gave a right to appeal to the Supreme Court in an action or matter in which “the sum sued for” exceeded a particular sum. Where the action was for the recovery of possession of land the criterion was the value of the land or the annual rent. Similarly for an action in replevin and in interpleader proceedings the threshold was the amount claimed or the value of the goods.
- This formula for identifying a right to appeal continued with regular adjustments to the monetary limit until the most recent amendment in 1997. Accordingly the sum sued for or the value of the property, in effect, determined the right to appeal and few difficulties were encountered in giving effect to this formula, see the annotations to s. 92 of the District Court Act in Wylie District Courts Practice 2nd ed. (1968).
- In the present regime for appeals an immediate difficulty is apparent in applying s. 118(2)(a)(i) to this case for which the applicant contends. Where, as here, a claim is dismissed and judgment is given for the defendant there is no judgment given for any amount whether equal to or more than the Magistrates Courts jurisdictional limit. The practice of assessing the quantum of a plaintiff’s damages, particularly in personal injuries actions, where the plaintiff has not been successful on liability, to avoid the expense and inconvenience of a new trial should there be a successful appeal, in no way converts that exercise into a final judgment such as to bring the appeal within s. 118(2)(a).
- Subsection 118(2)(b), however, is more promising in this case, as a matter of statutory construction, to give a right of appeal. A party dissatisfied with a final judgment may appeal of right if the judgment “involves directly or indirectly any claim ... in relation to any ... right with a value equal to or more than the Magistrates Courts jurisdictional limit”. Here the judgment involved, indirectly, a claim to damages of $200,000, that is, more than the Magistrates Courts limit of $50,000. An alternative construction would require an assessment of the actual value of the claim, in other words, the likely result of an appeal. This is unattractive since it would require a would-be appellant to second-guess the outcome of the appeal to know whether there was an appeal as of right or whether leave was needed. For the Court it is also unsatisfactory, since the question of the competency of an appeal would, in effect, require a ventilation of the grounds of appeal on issues of quantum which may involve as detailed an exposition of the evidence at trial set against the reasons for judgment as in an appeal proper.
- This is exemplified in many of the High Court decisions over the competency of appeals under s. 35 of the Judiciary Act 1903 (Cth) some of which are discussed by Pincus JA in his reasons for judgment.
- Former s. 35 of the Judiciary Act gave a right of appeal to the High Court where a judgement involved “directly or indirectly any claim ... to or respecting ... any civil right ... of the value of ...”, which is very similar to s. 118(2)(b). In Moller v Roy (1975) 132 CLR 622, Barwick CJ observed of that provision at 632:
“In my opinion, the order of the appellate court involves a claim to a civil right, e.g. the right to damages for injuries inflicted by the negligence of the defendant. In that case it is the value of that right which is definitive of the competence of the appeal. That value will not be the market value of the plaintiff’s action for damages, but the amount which the plaintiff might reasonably expect to recover, negligence being established. In my opinion, the amount claimed in the writ, prima facie, might be accepted as the value of that right for the purposes of par. (b), unless by evidence it is shown either not to be a bona fide statement of what the plaintiff genuinely expects to recover, or to be wholly unrelated to the extent of the injuries received and which could not reasonably found a verdict for more than $3,000 [then the jurisdictional limit under s. 35].”
In Cole v The Commonwealth (1961) 106 CLR 653 the High Court considered the competency of an appeal from the refusal by the intermediate court to order a new trial on the question of damages where the damages assessed at trial were below the monetary limit of s. 35 (£1,500) but the claim enunciated on appeal was for a sum exceeding the assessed amount by at least £1,500. In the course of its judgment the Court noted that the amount of £10,000 had been claimed in the writ and said at 656 “but we need not decide in the present case that a claim in a writ should be given any such absolute effect”, (as setting the value of the claim) but observed that the plaintiff sought to recover at her new trial a bona fide claim to damages to be assessed above the monetary limit in s. 35.
- Cole and Moller, therefore, suggest that prima facie, at least, the amount claimed might be taken to indicate the “value” of a claim for the purpose of the competency of an appeal. There is no construction of s. 35 of the Judiciary Act which clearly states that in a case such as the present, the amount of the claim may not be “the value” of the claim. There is no aspect of the second reading speech, (Hansard 30 April 1997 pp. 1174 et seq) which concerns these amendments. They were included in an Act with wide-ranging changes to the Magistrates, District and Supreme Courts in respect of jurisdiction and other matters.
- The amount of damages which the applicant wishes to pursue on appeal is submitted to be between $45,000 and $55,000. No material was before the court to ascertain the bona fides of such a claim, or that $50,000 would not be achieved. As I have mentioned, a construction which requires a detailed evaluation of the prospects of success on the issue of quantum on a leave application is not attractive. I would incline to a construction that allows the amount claimed to be the measure of the value of the claim and hold that the applicant has a right of appeal.
- If that were not the case, nonetheless leave ought to be given. The Workplace Health and Safety Act 1989 has been amended since this court has considered the effect of what was s. 9 and there is no decision of this court which has considered the interplay between the various provisions of Part 3 of the amended Act which arises in this case.
- Since the applicant contended that she needed leave she has not instituted an appeal in time. Leave ought to be given to extend the time in which to file and serve her notice of appeal.
- As to costs, since the respondent’s position was that leave was not required, and the applicant seeks an indulgence by way of an extension of time, I would propose that the respondent have its costs of the application to be taxed in any event.