Northern Territory of Australia v Kellie

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Riley AJ
• Judgment Date: 30 August 2024
• Neutral Citation: [2024] NTSC 73
• Docket Number: FILE NO: 2024-00157-SC

Between:

Northern Territory of Australia

Appellant

and

Tahnee Lee Kellie

Respondent

[2024] NTSC 73

JUDGMENT OF:

Riley AJ

FILE NO: 2024-00157-SC

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

CIVIL PROCEDURE — Court of Appeal — Leave to appeal — Notice of appeal filed after expiration of appeal period under s 19(1) Local Court (Civil Procedure) Act 1989 (NT) — Whether Rule 3.04(1) of the Supreme Court Rules 1987 (NT) is applicable — Rule 3.04(1) has no application where time limit is provided for by an Act — Whether failure to institute appeal in time was due to exceptional circumstances — Exceptional circumstances found — Leave to appeal granted.

CIVIL PROCEDURE — Court of Appeal — Inadequacy of reasons — Prior dishonesty of respondent noted by Local Court Judge — Local Court Judge failed to adequately engage with prior dishonesty in finding in favour of the respondent — Reasons for decision inadequate — Appeal allowed.

Arnott v Beams [2022] NTSC 25; Collins v Deflaw Pty Ltd [2000] NTSC 64; Eccles v Nikki Beach 1 Pty Ltd & Anor [2019] NTSC 39; Fennell v Kentz (Australia) Pty Ltd [2023] NTSC 42; Fleming v The Queen (1998) 197 CLR 250; Hagen Corporation Pty Ltd v Bikes Top End Pty Ltd (2015) 35 NTLR 87; Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd [2020] NTCA 4; Isles v Lyons [2016] NTSC 11; Lee v MacMahon Contractors Pty Ltd [2018] NTCA 7; Pettitt v Dunkley [1971] 1 NSWLR 376; Resi Corporation v Munzer [2016] SASCFC 15; Thorne v Kennedy (2017) 263 CLR 85; Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32; Wainohu v New South Wales (2011) 243 CLR 181; Weber v Nguyen Thi Phuong [2001] NTSC 116; Wilson v Lowery (1993) 4 NTLR 79, referred to.

Interpretation Act 1978 (NT) s 28

Local Court (Civil Procedure) Act 1989 (NT) s 19(1), s 19(2), s 19(5)

Police Administration Act 1978 (NT) s 145

Supreme Court Rules 1987 (NT), Rule 3.04(1), Rule 82.03, Rule 82.04(2)(a), Rule 82.04(2)(b)

REPRESENTATION:

Counsel:

Appellant: D McLure SC with T Moses

Respondent: K Foley SC with P Bellach

REASONS FOR JUDGMENT

(Delivered 30 August 2024)

1 This is an appeal from a judgment of the Local Court delivered on 13 December 2023 in which the Local Court awarded damages in the sum of $120,000 to the respondent following a finding that a police officer, in the course of a search of the respondent, assaulted her by inserting one or more fingers into her vagina.

2 The appeal is pursuant to s 19 of the Local Court ( Civil Procedure) Act 1989 (NT) (‘LCCPA’) and is confined to errors of law. The grounds of appeal centre upon: the adequacy of the reasons for decision; an assertion that certain findings were unreasonable and not supported by any evidence; that a number of findings were in error; and finally, that the award of damages was manifestly excessive or unreasonable.

3 An initial issue to be determined is whether leave to appeal was required and, if so, whether leave should be granted.

Leave to Appeal

4 Section 19(1) of the LCCPA provides that a party to Local Court proceedings may appeal to the Supreme Court on a question of law from a final order of the Court: (a) within 28 days; or (b) with the leave of the Supreme Court, after the expiration of 28 days. In the present proceedings the decision of the Local Court was handed down on 13 December 2023 (over a year after final submissions) by, unusually, emailing the decision and accompanying reasons to the parties without any prior notice. The notice of appeal was filed on 19 January 2024.

5 The appellant submitted that the appeal was within time notwithstanding that a period greater than 28 days had elapsed at the time the notice of appeal was filed. It was contended that, while s 19(1) of the LCCPA requires that the appeal be commenced within 28 days, s 19(5) goes on to provide that an appeal under the section “shall be brought in accordance with the Rules of the Supreme Court” (‘SCR’). Rule 82.04(2)(a) of the SCR provides that an appeal is commenced by filing a notice of appeal “within any period required for the commencement of the appeal under an Act”. Rule 82.04(2)(b) applies where no period is required under an Act and sets the time for filing a notice of appeal to be “within 28 days after the day the decision being appealed from is made”. Rule 3.04(1) then provides that “in calculating the time fixed by these Rules or by a judgment or order fixing, extending or abridging time, the period from 24 December to 9 January next following shall be excluded, unless the Court otherwise orders”.

6 The appellant submitted that r 3.04(1) applies to this appeal and, when the period from 24 December to 9 January is excluded, the appeal is within time. It was argued that s 19 of the LCCPA sets a timeframe for taking an action, being the period of 28 days, but that r 3.04(1) of the SCR governs how that timeframe is calculated by excluding certain dates around Christmas. It was submitted that the provisions are capable of harmonious operation.

7 The difficulty with the appellant's submission is that s 19(1)(a) of the LCCPA clearly states that the appeal must be commenced within 28 days. Rule 3.04(1) of the SCR, on its face, applies in circumstances where there is a time period fixed by the SCR as is apparent from the express reference to “calculating the time fixed by these Rules… the period from 24 December to 9 January next following shall be excluded…”. As the respondent submits, r 3.04(1) does not say “fixed by these Rules or by another Act”. Here it is the section of the LCCPA, and not the SCR, which fixes the time for commencement of the appeal.

8 Insofar as guidance in relation to the calculation of time is required that is to be found in s 28 of the Interpretation Act 1978 (NT) under the heading “Reckoning of time”. It is to be noted that s 28 provides additional time where the end of an appeal period falls on a public holiday or a Sunday but it does not provide for additional time over the Christmas vacation.

9 Further, r 3.04(1) appears in Chapter 1 of the SCR which chapter, by virtue of r 1.02(3A), is expressed to be applicable to any matter respecting an appeal “only to the extent provided by rule 82.03”. Rule 82.03, which appears in Chapter 2, provides that the rules in Chapter 1 apply “to any matter respecting an appeal not otherwise provided for in this Chapter (Chapter 2) with the necessary changes and to the extent that they are consistent with this Chapter”. The time within which an appeal may be lodged in the present circumstances is specifically provided for in Chapter 2 by operation of r 82.04(2)(a) as “any period required for the commencement of the appeal under an Act” which, in the present case, is s 19(1)(a) of the LCCPA. That subsection clearly provides that an appeal must be commenced within 28 days. In those circumstances, r 3.04(1) does not have application.

10 By way of contrast, in circumstances where the time limit is not provided for by an Act, r 82.04(2)(b) of the SCR sets a time limit of 28 days from the date the decision appealed from is made. Rule 3.04(1) will have application to any such time.

11 I note that this approach to the application of s 19 of the LCCPA is broadly consistent with that adopted in Isles v Lyons 1 and Collins v Deflaw Pty Ltd. 2

12 In the circumstances it is, in my opinion, necessary for the appellant to seek leave to appeal pursuant to s 19(2) of the LCCPA. That section requires the Supreme Court to consider two matters being: (a) whether the failure to institute the appeal in time was due to exceptional circumstances; and (b) whether the Court is satisfied that the case of any other party to the appeal would be materially prejudiced because of the delay.

13 In this case it is not suggested that any other party to the appeal would be materially prejudiced because of the delay. The relevant delay was between 10 and 19 January 2024. The focus is therefore upon whether there were relevant “exceptional circumstances”.

14 The nature of “exceptional circumstances” for present purposes was discussed by Grant CJ in Eccles v Nikki Beach 1 Pty Ltd & Anor 3 where his Honour said:

The term “exceptional” in this context is to be construed as an ordinary and familiar adjective. It describes a circumstance which forms an exception which is out of the ordinary course, or unusual, special, or uncommon. To be exceptional circumstances need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

15 Further, in considering whether exceptional circumstances exist a court is limited to a consideration of the reasons for failure to commence the appeal within time and is not permitted “to consider the merits of the proposed appeal even if the decision sought to be appealed is demonstrably wrong”. 4 In addition, a failure to institute an appeal within time because of the failure of a solicitor to do so through ignorance or negligence does not constitute an exceptional circumstance. 5

16 In the reasons for decision the hearing dates for the matter were recorded as 22 to 24 May 2022 and 1 November 2022. The parties advised that the hearing in fact took place on 19, 20 and 21 September 2022 with oral and written closing submissions on 7 November 2022. The decision was delivered over 12 months later on 13 December 2023. The parties were not notified that the decision was about to be handed down and it was delivered by officers of the Local Court by email on 14 December 2023 without any prior communication or notice to the parties. The notice of appeal was filed on 19 January 2024.

17 The solicitor for the appellant wished to obtain the advice of counsel prior to lodging an appeal. Counsel who appeared at the trial was unavailable having taken...