PARTIES: JOE WEBER

v

NGUYEN THI PHUONG

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

JURISDICTION: APPEAL FROM THE LOCAL COURT EXERCISING TERRITORY JURISDICTION

FILE NO: NO. LA 18 of 2000 (9908732)

#DATE 21:12:2001
DELIVERED: 21 DECEMBER 2001

HEARING DATES: 6 & 12 SEPTEMBER 2001

JUDGMENT OF: ANGEL J

CATCHWORDS:

Procedure - appeal nunc pro tunc

ORDER:

Application allowed.

REPRESENTATION:

Counsel:

Applicant: Mr P Cantrill

Respondent: Ms J Kelly

Solicitors:

Applicant: Mr Bill Piper (took over from T S Lee)

Respondent: Mr Brian Johns

Judgment category classification: C

Judgment ID Number: Ang200113

Number of pages: 7

IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

BETWEEN:

JOE WEBER

Appellant

AND:

NGUYEN THI PHUONG

Respondent

CORAM: ANGEL J

[2] Initially I had three applications before me, the respondent's application to strike out the applicant's appeal from the Local Court as incompetent, the applicant's application for leave to appeal out of time and the applicant's application to amend his grounds of appeal. In the course of the hearing the applicant lodged an amended application for leave to appeal dated 6 September 2001 seeking the following:

"1. The Applicant applies for leave to appeal nunc pro tunc from the judgments of the Local Court at Darwin given on 10 December 1999 and 2 June 2000.

2. Leave to appeal is required by s 19(1)(b) of the Local Court Act in respect of that portion of the Court's judgment which was given on 10 December 1999; and since the former Notice of Appeal was struck out this day, also in respect of that portion of the Court's judgment which was given on 2 June 2000.

3. The grounds of the application appear in the affidavit of THONG SUM LEE sworn on 22 February 2001 and filed with this application.

4. The applicant applies for an order that compliance with rule 83.23 be dispensed with."

[3] The genesis of the muddle before me is the way the case was dealt with in the lower Court.

[4] The respondent sued the applicant and a man call Tai for damages for conversion of a mango picking machine. At the relevant time the machine was jointly owned by the respondent and Tai. At one time, when in the custody of the respondent Tai unsuccessfully attempted to take physical possession of the machine from the respondent. After thwarting Tai's attempt to take the machine the respondent delivered it to a Mr Gilbert's property. At the time Mr Gilbert had a judgment debt against Tai. Mr Gilbert employed a bailiff to seize the machine and retain it at Gilbert's property. The applicant, at Tai's request, paid the money which Tai owed Gilbert to the bailiff who released the machine to the applicant. The applicant held the machine claiming a lien in respect of payment he had made discharging Tai's debt to Gilbert. As against the respondent's claim against the applicant for conversion the applicant counter-claimed for the loss of his claimed lien and defended the respondent's claim by way of set-off.

[5] The learned Magistrate on 10 December 1999 gave judgment for the respondent on her claim for conversion against the applicant but did not address in his reasons the claimed set-off. The learned Magistrate pronounced judgment for the respondent against the applicant for damages to be assessed. He also gave judgment for the respondent in detinue and conversion against the applicant's co-defendant Tai and ordered Tai who by then had custody of the machine to return the machine to the respondent. No judgment was given on the applicant's counter-claim. The applicant's solicitor who attended delivery of judgment on 10 December 1999 mistakenly believed the time within which to appeal would not begin to run until damages were assessed and the whole matter concluded on a subsequent occasion. The learned Magistrate finally assessed damages on the respondent's claim against the applicant on 2 June 2000 in the sum of $2.10.

[6] The applicant lodged a Notice of Appeal within 28 days of 2 June 2000 which Notice of Appeal is admittedly defective in that it raises no alleged errors of law on the part of the learned Magistrate.

[7] Section 19 of the Local Court Act, in part, provides as follows:

"(1) A party to a proceeding (other than a small claim proceeding) may -

(a) within 28 days; or

(b) with the leave of the Supreme Court, after the expiration of 28 days,

after the day on which the order complained of was made, appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.

(2) The Supreme Court may grant leave under subsection (1)(b) and the appellant may proceed with the appeal if the Supreme Court -

(a) is of the opinion that the failure to institute the appeal within the period referred to in subsection (1)(a) was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay."

[8] It is well settled that even if a magistrate's decision is demonstrably wrong that is not of itself a special or exceptional circumstance such as to justify an extension of time within which to appeal. It is also well settled that the failure of a solicitor to institute an appeal within time through ignorance or negligence rather than fortuitous circumstances such as accident or illness does not constitute such a special or exceptional circumstance. However the present case has features which - fortunately - are atypical of normal or the ordinary course of events.

[9] The learned Magistrate's mode of incompletely dealing with the matter in December 1999 and failing altogether to address the applicant's set-off defence caused the applicant's solicitor not unreasonably to think that the rights of the parties were yet to be concluded. The quantum of the respondent's damages was at that stage unknown. Tai had yet to return the machine to the respondent, the current condition of the machine was unknown, and the respondent was meanwhile maintaining a relatively substantial claim for loss of profits allegedly arising from loss of use of the machine. As it turned out the respondent obtained judgment against the applicant for $2.10. The applicant's counter-claim for loss of security for his pay-out figure, which exceeded $900, far outweighed the judgment sum. As I have said, the learned Magistrate did not address the defence of set-off or the applicant's counter-claim at all in his reasons.

[10] These I consider are circumstances sufficiently out of the ordinary such as to justify the applicant having his day in court by way of procedural indulgence.

[11] In the course of his submissions Mr Cantrill for the applicant submitted with respect to the learned Magistrate's reasons delivered in December 1999:

"I don't believe I can find, in 30 years of recollection of practice at the Bar, a judgment as unclear as this one. That in itself perhaps is an exceptional circumstance. It's not a mere matter of making a mistake but a matter of making so many in so varied a series of mistakes that no one could truly, with respect to His Worship, follow exactly what it was he had in mind. That I would submit, Your Honour, is a special circumstance leaving aside the question of where it should go."

[12] When this matter first came before me I asked the parties to enquire of the learned Magistrate what he had in mind regarding disposal of the applicant's counter-claim. I was duly informed that the learned Magistrate said he was unable to say. Thus nobody, including the learned Magistrate himself, knows from his published reasons or otherwise, or the terms of the order he made in December 1999, precisely what he had in mind or intended regarding the applicant's counter-claim. Perhaps he overlooked the set-off and counter-claim. Perhaps in giving judgment for the respondent he ruled on the defence of set-off. If he did so he has given no reasons for doing so. We simply do not know. This alone it seems to me in agreement with Mr Cantrill is a sufficient exceptional circumstance such as to justify the whole matter being revisited on appeal. The respondent does not allege any material prejudice as a consequent of the applicant's appeal proceeding.

[13] The applicant shall have leave to appeal nunc pro tunc from the judgments of the Local Court at Darwin given on 10 December 1999 and 2 June 2000 by filing an amended Notice of Appeal in the form of the draft Notice of Appeal annexed to the affidavit of Thong Sum Lee sworn and filed on 6 September 2001.

[14] I shall hear the parties as to any further orders and as to costs.