Re an application by Bare[1996] QDC 214

CHAMBERS

JUDGE O'BRIEN

IN THE MATTER OF “THE MAGISTRATES COURTS ACT OF 1921” AS AMENDED, S 11(3)a AND OF “THE DISTRICT COURTS ACT OF 1967”, AS AMENDED, S 95

In the matter of AN APPLICATION BY SHANE ROBERT BARE FOR LEAVE TO APPEAL AGAINST A DECISION OF THE MAGISTRATES COURT AT TOWNSVILLE

TOWNSVILLE

DATE 06/09/96

JUDGMENT

HIS HONOUR: Well, this is an application for leave to appeal against the decision of a Stipendiary Magistrate delivered at Townsville on 14 May 1996. The matter which gives rise to the appeal was an action for damages for personal injury sustained in a motor vehicle collision and the basis of the application for leave to appeal is that the Stipendiary Magistrate erred in a number of his findings of fact.

Section 11 A3 (1)(a) of the Magistrates Court Act 1921 allows any party who is dissatisfied with a judgment or order of the Magistrates Court to appeal to a District Court in any action in which the amount involved is more than $5000. However, by virtue of section 11 AB(2), where the amount is not more than $5,000 (as is the case here), an appeal shall only lie by leave of a District Court or a Judge thereof who shall not grant such leave unless satisfied that some important principle of law or justice is involved.

Section 11 AB(3) then provides: “The appellant shall, within the time and in the manner prescribed, give notice of the appeal, stating briefly the grounds thereof to the other party, or the other party's solicitor, and shall also give security (to be approved by the Registrar) for the costs of the appeal or shall, instead of giving security deposit in the hand of the Registrar $1,600, or such other sums maybe prescribed to answer the costs of the appeal in the event of the appeal being dismissed.”

By reason of Rule 292(2) of the Magistrates Court Rules, the time prescribed for the filing of a notice of appeal with the Registrar of the Magistrates Court is 21 clear days of the day on which the judgment appealed from is delivered. The difficulty which confronts the applicant in the present case is that, although the judgment appealed from was delivered on 14 May 1996, leave to appeal pursuant to section 11 AB(2) was not sought within 21 days of that judgment and consequently no notice of appeal has yet been lodged in accordance with the rule. It is accepted that no such notice can be lodged until leave to appeal is obtained and the question arises of whether this Court has the power to grant the necessary extension of time.

It is my view rather, that this Court has no such power, and that the situation is governed by the decision in Beggs v. Mellor, 1969 Q.W.N 44. It was argued by counsel for the applicant that the decision in that case should no longer be regarded as binding authority in light of the decision of the Court of Appeal in Jiminez v. Jayform Construction Proprietary Limited, 1993, 1 Q.R 610. In the judgment of the majority in that case, Beggs v. Mellor was distinguished on the basis of changes that had since occurred to the appeal provisions of the District Court rules and to order 70, Rule 34 of the Rules of the Supreme Court.

However, there has been no such corresponding change in the rules governing appeals to this Court from the Magistrates Court. That procedure is still governed by the Magistrates Court Act and rules made thereunder which expressly give, in Rule 309(1), the power to extend time to a Stipendiary Magistrate. It follows, in my view, that I should regard myself as being bound by the decision in Beggs v. Mellor and hold that his Court has no power to extend the time for the filing of a notice of appeal.

I should add that I would, in any event, be inclined to refuse leave to appeal on the basis that no important principal or law of justice has been shown to be involved. The test to be applied in determining whether such a principle has been shown to be involved was stated by MacNaughton J in Wanstall v. Burke, 1925 SRQ 295, at 297, and has since been applied in such cases as Scagliotti v. Boyd, 1962, Q.R 481, and Johns v. Johns, 1988 1 Q.R 138. It is clear on the authorities that an allegation that the Stipendiary Magistrate has erred in his findings of fact will not satisfy the requirements of this test. See for example, Scagliotti v. Boyd at pages 491 and 496.

At the same time as this action for personal injuries was heard before the Magistrate, there was also heard an action for property damage involving the same parties and arising out of the same set of facts. In that matter, because of the amount involved, there is an appeal as of right pursuant to section 11 AB (1) of the Act, and counsel for the applicant has argued that if that appeal were to succeed and if leave were refused in the present case then there would exist an anomalous situation, the very potential for which is enough to establish the existence of an important principle of law and justice. I am not persuaded that this is so. Although the two actions are related they really represent two separate cases which, as a matter of convenience were tried together.

In my view, the mere fact that an appeal has been lodged in the second action does not of itself, create the existence of an important question of law or justice in the first action for the purposes of section 11 AB(2).

For these reasons I consider that the application should be dismissed and I so order with the respondent to have his costs of and incidental to the application to be taxed.