Bolt v Dwyer[2000] QDC 417

CIVIL JURISDICTION

APPLICATION UNDER SECTION 222 OF THE JUSTICES ACT FOR EXTENSION OF TIME

BOLT v. DWYER EX PARTE ANOR

BRISBANE

DATE 07/04/2000

ORDER

HIS HONOUR: This is an application for an extension of time to serve a notice of appeal under s. 222 of the Justices Act.

The applicant was the complainant in proceedings in the Magistrates Court following a complaint alleging an offence under s. 93 of the Motor Accidents Insurance Act 1994 against the respondent Magistrate who dismissed the complaint on the basis that there was no case to answer on various grounds including that the complaint did not allege an offence created by s. 93.

Without the benefit of full argument in the matter, it seems to me on the face of the complaint that that conclusion was correct; the allegation in the complaint contains elements of the offence created by subsection (1) of s. 93 and elements of the offence created by subsection (3), but does not contain an accurate statement of all of the elements of either offence.

The particulars are also badly drawn, but that is not, I think, necessarily a fatal problem. I should say that the essential offence under s. 93 involves saying things in a notice of claim in connection with a motor vehicle accident under s. 37, a notice which is by that section required to be sworn.

I have been provided with a copy of the notice of claim and the answer to one of the questions identified in the particulars is certainly inconsistent with the fact alleged in the complaint. The person who signed the notice of claim stated that since the relevant accident he had not been in employment and the basis of the complaint was that the respondent had been in employment for a particular period after the date of the accident.

If that factual basis were made out, it would I think amount to an offence under subsection (1), although I think the complaint ought to have been amended before such an offence would be properly disclosed. There may be an issue as to whether the Magistrate ought to have amended the complaint in response to that point, and it may be that that is a matter which would have to be determined on the hearing of the appeal.

However, there are other more immediate issues that I have to decide under s. 222(2A), firstly whether there is jurisdiction to extend time for service of the notice of appeal under s. 222, and secondly whether that jurisdiction should be exercised.

The decision was given by the Magistrate, I was told, on 10 March 2000. Under s. 222(2)(a)(i), the appellant shall within one calendar month after the decision serve on the person concerned with upholding such decision and on the Clerk of the Court at the place where the decision was given notice of appeal in the approved form.

One calendar month has yet to expire. Under subsection (2A) if the appellant cannot give notice under subsection (2)(a) through no fault of the appellant's, the appellant may apply to a District Court Judge for an order extending time for service of the notice and if necessary for substituted service.

This is a revised form of wording, but the essential provision has been in s. 222 for some time and I do not think that the recasting of the section changes the substance of the provision which was considered by the Court of Appeal in GSA Industries Australia Pty Ltd v. Tully (1995) 1 QR 607.

On that occasion a decision was given by a Magistrate on 15 January 1993, the notice of appeal was filed on 5 February 1993 and it was not served until 29 March 1993. An application was made to the District Court for an extension of time which was dismissed by the District Court Judge on 21 May 1993. His Honour then stated the case to the Court of Appeal, which upheld his conclusions and affirmed the judgment of the District Court Judge.

There is no suggestion in the reasons of the Court of Appeal that the application for an extension of time was invalid because the application was made after the period of one calendar month, or a period of 28 days, as it was expressed in s. 222 subsection (2) as it then stood.

The Court of Appeal said that it was a requirement before an application for extension of time could be successful that the applicant establish that he or she was unable to serve notice within time, otherwise the discretion to extend time did not exist.

It seems to me in principle that it is not possible to establish an inability to serve within one calender month until after that period has expired because it is always, or at least it will commonly not be possible to establish, if the application is made before the expiration of that period, that the respondent cannot be served during the balance of the period. Even if there is good reason to think that it is unlikely to be possible to serve the respondent during the balance of the period, for example, because the respondent has disappeared and no-one knows where he is, there would always be the possibility that he might reappear.

It seems to me that the approach adopted by the Court of Appeal in GSA Industries necessarily requires that an application under subsection (2A) of s. 222 can only be made after the expiration of the one calendar month period referred to in subsection 2(a). Until that time is arrived at, it becomes impossible to fulfil the first step in the requirement the jurisdiction directs it to be established.

I think that is probably sufficient basis for me to dismiss the application before me, but in any case it seems to me that the material does not establish that the applicant was unable to serve notice within such part of the one calendar month as has expired up until now.

The position is simply that until fairly recently, no serious attempt was made to serve the respondent because the applicant was taking the precaution of obtaining a copy of the reasons for the decision of the Magistrate and then obtaining the opinion of senior counsel before deciding whether or not to appeal. They may well be perfectly reasonable precautions, but the fact that an applicant is taking that course does not give rise to an inability to serve a respondent.

An inability to serve a respondent may arise because of some misfortune besetting the appellant, as in Carrington v. McColl (1948) VLR 304, the case mentioned by the Court in GSA Industries, or it may obviously enough arise because the respondent is not available to be served. But I do not think it arises because of some delay, whether or not justified, in deciding whether to appeal. That is not what subsection (2A) is talking about.

The respondent or the respondent's representative was informed orally of the reasons of the Magistrate at the time when the decision was given, or could have been there, and for practical purposes the applicant had the opportunity to consider the matter and ought to have been able to decide at once whether or not it was appropriate to appeal.

If I thought it was open to me to deal with the application under subsection (2A) prior to the expiration of the one calendar month, I would in any event find that on this material the first requirement to be established before the discretion could be said to exist had not been made out and so the application would have to fail in any event.

The application for an extension of time is dismissed.

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