Re David Jones (Australia) Pty Ltd v Ursula Arauner [1981] FCA 227; (1981) 56 FLR 351 (24 December 1981)

FEDERAL COURT OF AUSTRALIA

Re: DAVID JONES (AUSTRALIA) PTY. LTD.
And: URSULA ARAUNER [1981] FCA 227; (1981) 56 FLR 351
No. ACT G.14 of 1981
Appeal from award under Workmen's Compensation Ordinance 1951 - Appeal -
Statutes - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
McGregor(1), Kelly(1) and Ellicott(1) JJ.

CATCHWORDS

Appeal from award under Workmen's Compensation Ordinance 1951 - Service of notice of appeal on respondent out of time - Application for leave to dispense with service refused by A.C.T. Supreme Court - Application to strike out notice of appeal granted - Appeal - Whether appeal to Supreme Court deemed duly instituted - Exercise of discretion to dispense with service.

Workmen's Compensation Ordinance 1951 (A.C.T.) s.26.

Court of Petty Sessions Ordinance 1930 (A.C.T.) Division 2 of Part XI, ss.208(h), 209(1), 210(1)(2), 211(1) and 212.

Appeal - Notice of appeal - Service on respondent out of time - Notice could have been served within time - Whether appeal should be struck out - Whether court may dispense with personal service - Court of Petty Sessions Ordinance 1930 (A.C.T.), ss. 208 (1) (h), 209 (1), 210 (1), (2), 211 (1), 212.

Statutes - Interpretation - Appeal - Notice of appeal - Served on respondent out of time - Whether service of notice of appeal precondition of valid appeal - Power of court to dispense with service - Court of Petty Sessions Ordinance 1930 (A.C.T.), ss. 209 (1), 210 (1), (2), 211 (1), 212.

Practice - Appeal - Notice of appeal - Served on respondent out of time - Whether service of notice of appeal precondition of valid appeal - Power of court to dispense with service - Court of Petty Sessions Ordinance 1930 (A.C.T.), ss. 208 (1) (h), 209 (1), 210 (1), (2), 211 (1), 212. The appellant served upon the Clerk of Petty Sessions within twenty-one days a notice of appeal in respect of an award made by a magistrate under the Workmen's Compensation Ordinance 1951 (A.C.T.) and, on the same day, the appellant gave the required security for the costs of the appeal. A copy of the notice of appeal was sent to the respondent shortly after the time for service had elapsed and was served personally on the respondent more than four weeks later. The respondent moved the Supreme Court of the Australian Capital Territory that the notice of appeal should be struck out and the appellant sought an order from the court that, in so far as s. 209 of the Court of Petty Sessions Ordinance 1930 (the Ordinance) required personal service of a notice of appeal on the respondent, such service should be dispensed with under s. 210 (2) of the Ordinance. The court ordered that the appellant's application be dismissed holding that the provisions of the Ordinance as to substituted service could not be applied where it is practicable to effect service within the twenty-one day period and that the notice of appeal be struck out. An appeal against these decisions was lodged.

Held: Per curiam allowing the appeal - (1) In the instant case an appeal was duly instituted under the Ordinance.

(2) The requirement of service of a copy of the notice of appeal on each of the parties to the award was a procedural step and not a condition precedent to the due institution of the appeal.

(3) The Supreme Court of the Australian Capital Territory had power to dispense with service of the notice of appeal whether it was practicable to serve it on the other party within the time stipulated by the Ordinance or not.

Whitehouse Hotels Pty. Ltd. v. Lido Savoy Pty. Ltd. [1974] HCA 38; (1974), 131 CLR 333; Moore v. Tooheys Ltd. [1981] FCA 172; (1981), 56 FLR 345, applied.

HEARING

Canberra, 1981, November 19; December 24. 24:12:1981
APPEAL.

Appeal from a decision of the Supreme Court of the Australian Capital Territory (Connor J.) to the Full Court of the Federal Court of Australia.

H. D. Sperling Q.C. and P. M. Biscoe, for the appellant.

P. L. R. Sheils, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Macphillamy Cummins & Gibson.

Solicitors for the respondent: Evans Murphy & Phillips.
E. F. FROHLICH

ORDER

The appeal against the order of 6 May 1981 striking out the notice of appeal be upheld.

The appeal against the order refusing to dispense under s.210 of the Court of Petty Sessions Ordinance 1930 with service on the respondent be upheld.

Service of the notice of appeal on the respondent be dispensed with.

The respondent pay the appellant's costs of this appeal.

DECISION

David Jones (Australia) Pty. Ltd. (the appellant) appeals from a decision of a learned judge of the Supreme Court of the Australian Capital Territory given on 6 May 1981 whereby he dismissed an application by the appellant seeking that personal service of a notice of appeal be dispensed with and ordered that a notice of appeal be struck out. It is convenient first to refer to the legislative framework relating to these proceedings and then to relevant events.

By the combined operation of paragraph (c) of s.11 of the Australian Capital Territory Supreme Court Act 1933, s.207(1) and paragraph (h) of s.208(1) of the Court of Petty Sessions Ordinance 1930 of the Australian Capital Territory (the Ordinance) and s.26 of the Workmen's Compensation Ordinance 1951 of that Territory (the Compensation Ordinance), an appeal may be taken to the Supreme Court of the Territory from any award made by the Court of Petty Sessions exercising jurisdiction under the Compensation Ordinance with respect to any matter settled by arbitration under that Ordinance by any party to the arbitration. By s.26(2) of the Compensation Ordinance, the provisions of Division 2 (ss.203-219) of Part XI of the Ordinance apply to and in relation to an appeal under s.26(1) of the Compensation Ordinance as they apply to and in relation to an appeal for an order of the kind referred to in paragraph (h) of s.208 of the Ordinance. It is to Division 2 of Part XI of the Ordinance that one turns, therefore, to ascertain the manner of making an appeal from such an award.

Sections 209(1), 210(1)(2), 211(1) and 212 are in the following terms:-

"209(1) An appeal to which this Division applies shall be made by the appellant -

(a) serving on the clerk within twenty-one days after the conviction or order was made, notice of appeal; and

(b) serving, before or as soon as practicable after the expiration of that period, a copy of the notice of appeal -

(i) . . . . . . . . .

(ii) in the case of an appeal against an order on each other person who was a party to the proceedings in the Court of Petty Sessions.

210(1) Where it appears to the Supreme Court, on an application made for an order under this section, that personal service of a notice of appeal under the last preceding section on a person on whom it is required to be served cannot be effected, the Supreme Court may make such order for substituted or other service as the Supreme Court thinks just.

(2) The Supreme Court may, on an application made for an order under this sub-section, dispense with service of a notice of appeal if the Court thinks it necessary or expedient to do so

211(1) Within seven days after a notice of appeal is served on the Clerk or within such further time as the Supreme Court, on an application made either before or after the expiration of that period of seven days, allows, the appellant shall give security in the sum of Forty dollars for the costs of the appeal.

212. An appeal under this Division shall be deemed to have been duly instituted when security is given in accordance with the last preceding section."

On 27 January 1981 Mr Nicholl, S.M., exercising jurisdiction under the Compensation Ordinance, handed down an award in favour of the respondent in arbitration proceedings in which the respondent had been the applicant and the appellant the respondent. The award made findings that the respondent was a workman employed by the appellant on 21 October 1974 when she suffered injury by accident arising out of and in the course of her employment as a result of which she was rendered unfit for work and became entitled to compensation as awarded. For the purposes of the above provisions, the award was an order of the Court of Petty Sessions from which an appeal could be made.

On 6 February 1981, the appellant served upon the Clerk of the Court of Petty Sessions a notice of appeal in respect of the award. On the same day the appellant gave security as required by s.211 in the sum of Forty dollars for the costs of the appeal.

Inadvertently, the solicitors for the appellant failed to ensure that a copy of the notice of appeal was served upon the respondent. On 19 February 1981, two days after the time for service of the notice of appeal on the Clerk had elapsed, Mr Murphy, solicitor for the respondent, called the office of the solicitors for the appellant and enquired whether or not the appellant was to make an appeal. Later that same day Mr Murphy received at his office through the Canberra Document Exchange a copy of the notice of appeal. No point was taken about the method of service or the failure then to serve the respondent personally. The respondent, however, relied upon the fact that the copy notice of appeal was served out of time. It should be noted that a copy of the notice of appeal was eventually served personally on the respondent on 21 March 1981.

On 23 February 1981 the solicitor for the respondent wrote to the solicitor for the appellant in the following terms:-
"We refer to the notice of appeal which has been lodged in this matter. We understand from the court that the appeal was lodged on 6 February 1981, but it was not served upon us until 19 February 1981, and then through the document exchange.

We have a mind to obtain from our client instructions to again apply to strike out the appeal on the grounds that it was not served as soon as practicable, as required by the rules. However, because of the time and effort which has gone into this case, our client is unable to further be involved in issues which may not be quickly resolved and wishes the appeal to be set down as quickly as possible, despite delays which the respondent seems determined to impose.

In that regard we would point out that no further compensation payments have been made to our client since the arrears were paid in early December 1980, and we have written to Messrs. Hunt and Hunt about that. We enclose herewith certificate of readiness for execution by you so that we may have the appeal set down for hearing forthwith."

On 4 March 1981 the appellant's solicitors received a requisition to file the transcript and on 17 March it was lodged with the court.

By notice dated 19 March 1981 the solicitors for the respondent gave notice that the Supreme Court would be moved on 27 March 1981 for orders that the notice of appeal filed by the appellant should be struck out and for costs. By notice dated 24 March 1981 the solicitors for the appellant gave notice that the Supreme Court would be moved on behalf of the appellant on 27 March 1981 for an order that in so far as s.209 of the Ordinance required personal service of a notice of appeal on the respondent such service should be dispensed with under s.210(2) of the Ordinance.

The motions were heard on 27 March 1981 and 5 May 1981. In his judgment delivered on 6 May 1981 the learned Judge of the Supreme Court ordered that the appellant's application be dismissed and that on the respondent's motion the notice of appeal be struck out. His Honour held that s.210(a) makes provision for cases where substituted service would in effect be a waste of time and effort. It could not be applied to a case where, as here, it was practicable to effect service within the 21 day period. He therefore ordered that the appellant pay the respondent's costs of both motions. The appellant appeals to this court seeking orders reversing these orders.

In our opinion the proper determination of this appeal depends largely on the true construction of ss.211 and 212 of the Ordinance.

It will be noted that although s.209 deals with the procedure to be followed to make an appeal and requires service on the Clerk of the Court of Petty Sessions and service on other parties s.212 provides that an appeal shall be deemed to be duly instituted when security is given in accordance with s.211. This last-mentioned provision requires security to be given in the sum of $40 within seven days after a notice of appeal is served on the Clerk or within the further time allowed by the section. Service on a party is not required in order that the appeal be deemed "duly instituted".

In this case the notice of appeal was served pursuant to s.209(1) of the Ordinance on the Clerk on 6 February 1981. Service was therefore well within the time allowed by that sub-section. Within seven days of that service, indeed almost contemporaneously, the appellant gave security in the sum of $40 for the costs of the appeal. That being the case it follows, in our view, that the appeal is deemed by s.212 of the Ordinance to have been duly instituted. This is so notwithstanding that the notice of appeal was not served on the respondent as required by s.209(i)(b)(ii) as soon as practicable after the expiration of the 21 day period.

The fact that s.212 when read with s.211 does not make the due institution of the appeal dependent on service of the notice of appeal on other parties in our opinion throws considerable light on the proper construction of s.209. Although that provision lays down the procedure whereby an appeal "shall be made" it is clear, in our opinion, that s.209 is laying down the correct procedure for making an appeal and is not purporting to make actual service of the notice of appeal on other parties a pre-condition of a valid appeal. This follows from the fact that s.210(1) allows for substituted service, but also from the circumstance that s.212 does not make due institution of the appeal dependent on such service.

Section 212 also throws light on the proper construction of s.210(2). If the due institution of an appeal is not made dependent on service of the notice of appeal on a party one would naturally expect to find a provision in or under the legislation which allowed service to be dispensed with or the time for service to be extended.

In our opinion s.210 was intended to and does fulfil this purpose. Section 210(1) empowers the Supreme Court to order substituted or "other" service as it thinks fit. Under s.210(2) the court may dispense with service of a notice of appeal if the court thinks it necessary or expedient to do so. In this case the learned Supreme Court judge took the view that s.210(2) could not be used in a case where service of the notice of appeal within the 21 day period was practicable. He thought that sub-s.(2) was in aid of sub-s.(1). In our opinion his Honour was in error in so construing sub-s. (2). This sub-section, in our view, was intended to confer a broad discretion on the Supreme Court to dispense with service in any case where it thinks it necessary or expedient. The power is not expressed to be in aid of sub-s. (1) but is to be exercised on an application for an order "under this sub-section". Sub-section (3) enables the court to impose conditions in making an order under sub-s. (2).

It follows, therefore, that in our opinion an appeal was duly instituted in this case under the ordinance, that the requirement of service of a copy of the notice of appeal on each of the persons who was a party to the award is a procedural step and not a condition precedent to the due institution of the appeal and that the Supreme Court had power to dispense with service of the notice of appeal whether it was practicable to serve it on the other party within the time stipulated by s.209(1)(b) or not.

There was debate before us concerning the effect of a concession made before his Honour by the appellant that it would have been practicable to have served the respondent personally before the expiration of the period of twenty-one days from the date of the award. Even if it be accepted that the concession reflected accurately the circumstances so that the time for service calculated in the way prescribed by s.209(1)(b) had passed, we think that s.210(2) empowers the Supreme Court to cure the failure to effect service of a copy of the notice of appeal on the respondent by dispensing with service. The power may, of course, be exercised when a respondent cannot be found but the word "dispense" is used generally and is not restricted to such a case. For the reasons we have given we see no reason why the power should not be exercised when service has been effected outside the time prescribed. Where, as here, service has been effected on the respondent's solicitor only two days after the 21 day period has expired and that solicitor in his letter of 23 February appeared to disclaim any intention to complain about the lateness of service and no injustice has been caused to the respondent, we think the power to dispense with service ought to be exercised.

The approach which we have adopted accords with that taken by the High Court in Whitehouse Hotels Pty. Limited v. Lido Savoy Proprietary Limited [1974] HCA 38; (1974) 131 C.L.R. 333, and by a Full Court of this Court in Moore v. Tooheys Limited (4 November 1981; unreported). In each case the court was concerned with rules of court which provided that an appeal should be instituted by filing a notice of appeal. Service of it was provided for but was not made a pre-condition of a valid appeal. The rules also contained provisions which allowed amply for extensions of time should those be necessary.

In each case the court held that the appeal had been validly instituted on the filing of the notice of appeal within the time prescribed and the fact that service had not taken place within time was left to be dealt with as an irregularity.

Order 70 r.4 of the High Court Rules provides that every appeal shall be instituted by the filing of a notice of appeal in the manner prescribed. Other rules of Order 70 deal with the service of the notice of appeal and there are provisions in the rules (Order 60 Rule 2) for relief from non-compliance. The Full High Court (Menzies, Gibbs and Stephen JJ) in Whitehouse Hotels Pty. Limited v. Lido Savoy Pty. Limited (supra at p.336) in a joint judgment expressed their view of these rules in the following passage:-
"Upon the proper construction of the rules once a notice of appeal is filed within time and in the proper manner, an appeal is instituted. If the notice of appeal has not also been served within the prescribed time there will have been a failure to comply with the rules. In such a case the appellant might apply under Order 64 r.2 to be relieved from the consequences of non-compliance with the rules or the respondent might apply in accordance with O.64 r.3 to set the proceedings aside for irregularity. However, subject to the power of the court to set aside, amend or otherwise deal with the proceedings, the non-compliance will not render the appeal void unless the court or a Justice otherwise directs O.64 r.1."

Here, the power to waive the irregularity of non-service is in our opinion found in the dispensing provisions of s.210(2) and (3).

Although the appeal against the refusal to dispense with service of the copy notice of appeal on the respondent might properly be dealt with by remitting the matter to the Supreme Court to be heard and determined in the light of these reasons, it seems to us appropriate, in all the circumstances, that the discretion reposed in the Supreme Court by s.210(2) of the Ordinance should be exercised by this Court. Once it is clear that s.210(2) confers power to dispense with service in the circumstances of this case, we think that the proper exercise of that discretion, in this case, requires that service be dispensed with.

Accordingly, we order:-

(1) That the appeal against the order of 6 May 1981 striking out the notice of appeal be upheld;

(2) That the appeal against the order refusing to dispense under s.210 of the Ordinance with service on the respondent be upheld;

(3) That service of the notice of appeal on the respondent be dispensed with; and

(4) That the respondent pay the appellant's costs of this appeal.