RABNUBIK PTY LTD trading as the HOME IMPROVEMENTS SPECIALISTS v CENTRE REFRIGERATION & AIRCONDITIONING PTY LTD
Supreme Court of the Northern Territory Gray J
27 March and 9 April 1991 at Darwin

PRACTICE & PROCEDURE - Appeal from Local Court - Small Claims proceeding - Refusal by	Local Court to set aside a judgment in default of defence - whether a final order for the purposes of s.19(4) Local Court Act - Jurisdiction of Supreme Court - limited to appeals from final orders within the meaning of s.19(4) Local Court Act.

STATUTORY INTERPRETATION - Local Court Act - s.19 - meaning of final orders for the purpose of s.19(4).	Small Claims Act - ss.4 and 19 - meaning of final orders.

STATUTORY INTERPRETATION - Inconsistency between two provisions - later enactment impliedly repeals earlier provision - Local Court Act - s.19 Small Claims Act - s.32.
WORDS & PHRASES - final orders.

Statutes referred to:
Small Claims Act (1982) NT Small Claims Rules (1989) NT

Local Court Act (1989) NT Local Court Rules (1989) NT
Judiciary Act (1903) C'th.

Cases referred to:
Carr v Finance Corporation of Australia (1981) 147 CLR 246 Goodwin v Phillips (1908) 7 CLR 1

Counsel for Appellants: Solicitors for Appellants:

Counsel for Respondent: Solictors for Respondent:

S.M. Gearin
Elston & Gilchrist

Delaney Buckley & stone

gra91014
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 29 of 1991

BETWEEN:

RABNUBIK PTY LTD TRADING AS HOME IMPROVEMENTS SPECIALISTS
Appellant
/I.ND:

CENTRE REFRIGERATION AND AIRCONDITIONING PTY LTD
Respondent

CORAM:	GRAY J

REASONS FOR JUDGMENT
(Delivered 9 April 1991)

The Court has before it two appeals each against a refusal by the Local Court at Alice Springs to set aside a judgment entered in default of defence.	The proceedings in question were commenced under the provisions of the Small Claims Act.

Mr Delaney of Counsel, who appeared for the respondent in each appeal, took a preliminary objection to this Court's jurisdiction to entertain the appeals.

The authority to appeal to the Supreme Court from an order of the Local Court is contained in s.19 of the Local Court Act.	It is necessary to set out its provision in full.

^11 19.	APPEAL TO SUPREME COURT

A party to a proceeding (other than a small claim proceeding) may -
within 28 days; or
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.

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

is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
A party to a proceeding (other than a small claim proceeding) may, within 14 days after the day on which the order complained of was made, appeal to the Supreme Court from an order of the Court, (other than a final order) in that proceeding, with the leave of the Supreme Court.

within 28 complained Court from proceeding

A party to a small claim proceeding may, days after the day on which the order
of was made, appeal to the Supreme a final order of the Court in that on the grounds that -
the decision was wrong in law; or

the conduct of the proceeding was unfair.

An appeal under this section shall be brought	in accordance with the Rules of the Supreme Court.

After hearing and determining the appeal, the Supreme Court may make such order as it thinks fit, including an order remitting the case for re-hearing to the Court with or without directions on the law.

An order made by the Supreme Court on the appeal, other than an order remitting the case for re-hearing to the Court, may be enforced as an order of the Supreme Court.

In this section "small claim proceeding" means a proceeding under the Small Claims Act."

Mr Delaney contended that the only right of appeal which is conferred in proceedings under the Small Claims Act is "from a final order".	S.19(4).	He submitted that neither of the orders appealed from is a final order.

It is well settled that a refusal to set aside a judgrnent in default of defence is not a "final judgrnent" within the meaning of s.35 of the Judiciary Act of the Commonwealth.	There is, in my view, no distinction to be made between a "final judgment^11 and a "final order" referred to in s.19 of the Local Court Act.	The test to be applied in each instance is whether the judgrnent or order finally determines the rights of the parties.

In Carr v Finance Corporation of Australia	(1981)
147 CLR 246, it was held that an order refusing to set aside a judgment in default of defence does not, as a matter of law, finally dispose of the rights of the parties.	^It ^was

pointed out that a further application to set the judgment aside may be made.	That is equally true of the order made in each of these cases.	See Rule 22.05 of the Small Claims Rules.

Thus, at first glance it would appear that the right of appeal conferred by s.19 of the Local Court Act does not extend to orders such as those presently under appeal.

But a complication is introduced by a combination of s.19 of the Small Claims Act and the definition of "judgment" in s.4.	S.19 provides:

^11JUDGMENT FINAL AND CONCLUSIVE
A judgment of the Court is final and conclusive, and, subject to this Act, a party to the proceedings is not thereafter entitled to institute or continue other proceedings in any court for the same cause or matter. ^11

S.4(1) provides that ^11 in this Act, unless the contrary intention appears, ^1 judgment ^1 includes an order."

These provisions prompted Ms Gearin, counsel for the appellant, to argue that every order made under the Small Claims Act becomes a final and conclusive judgment within the meaning of s.19.	Therefore, it was said, the

right of appeal conferred by	s.19 of the Local Court Act applies to each of the orders under appeal.

There are, I think, a number of answers to this submission.

First, it appears clear that an order refusing to set aside a default judgment is not, in fact, a final and conclusive order.		Rule 22.05 empowers the Court to entertain a further application  by leave or by the consent of the parties.	Therefore it seems to me that a contrary intention appears which makes the extended definition of "judgment" inoperative in this instance.	If it were otherwise, Rule 22.05 would be inconsistent with s.19 of the Small Claims Act and thus ultra vires.

Secondly, it is apparent from s.19 of the Local Court Act that an appeal as of right from a Local Court order is confined to a "final order".		S.19(1).	An appeal for an order other than a final order can only be brought with the leave of the Supreme Court.	S.19(3).

It is most unlikely that Parliament intended that a right of appeal from the Local Court be confined to final orders whereas appeals from orders under the Small Claims Act be quite unrestricted.

Prior to Act No.43 of 1988 coming into operation on 5 June 1989, s.4 of the Small Claims Act provided that ^11 judgment^11      included an order assessing the amount of damages.	By Act No.43 of 1988, the words "assessing the amount of damages" were omitted.	Act No.43 of 1988 also made sweeping changes by	repealing a number of procedural
provisions of the Act.	Most of these procedural provisions were reproduced in the Small Claims Rules, which were made on 21 June 1989 pursuant to s.50(1) of the Act.	S.50 was introduced into the Act by Act No.43 of 1988 and empowered the Chief Magistrate to make rules, not inconsistent with the Act, to regulate the practices and procedures of the Court.

The Rules are comprehensive and provide for the making of a variety of orders which are clearly not final orders.		Rule 1.01 provides that "order" means "an order made by	the Court at the trial of a proceeding or on the hearing of an application in a proceeding, and includes a judgrnent.^11	"Proceeding" is defined as meaning ^11a claim in the Small Claims Division".

Rule 9.01 provides for the entry of judgment in default of defence.	Rule 22.01 authorises a party against whom a default judgment is obtained to apply for a  rehearing.	Rule 22.05 provides for further applications for a rehearing by leave of the Court or by consent.
Rule 21.01 empowers the Court to make an order at any stage

of a proceeding requiring a person to do an Act and fix the time for doing it.	Rule 17.01 gives the Court power to order a person to attend a proceeding to give evidence or produce a document.	Rule 10.01 allows the Court to make orders in relation to the joinder of parties.

If Ms Gearin's submission be correct, it would mean that a party affected by an obviously interlocutory order, say, for the production of a document or the joinder of a party, could appeal as of right to the Supreme Court, although a similar order made in ordinary Local Court proceedings could not be appealed except by leave of the Supreme Court.

Furthermore, if s.19 of the Small Claims Act has the meaning contended for, it would mean that a Rule such as Rule 22.01 is inconsistent with s.19 and thus invalid.

I must confess difficulty in understanding the purpose of s.19, but I cannot accept that it has the far reaching effect which is claimed for it.

In my opinion, when one is dealing with an obviously interlocutory order such as the present, the order is not within the category of a "judgment" referred to in
s.19.	This is so because a sufficient contrary intention appears to rebut the extended definition of "judgment" in
s.4.	To reinforce this proposition, it should be noted

that the extended definition of "judgrnent" in s.4(1) only has application ''in this Act", namely, the Small Claims Act. Accordingly, the expression "final order" in s.19(4) of the Local Court Act should be given its natural meaning.

A further peculiarity of this case is that s.32 of the Small Claims Act, which was introduced by Act No.43 of 1988, provides for a right of appeal "against a judgrnent under this Act."	This provision appears to remain on foot despite the enactment of the more detailed appeal provisions in s.19 of the Local Court Act.

I was not referred to s.32 by counsel, and it is not necessary to discuss its provisions because it has been overtaken by	the later enactment of s.19 of the Local Court Act.

S.32 of the Small Claims Act was introduced on
5 June 1989 whereas s.19 of the Local Court Act was enacted as part of the Local Court Act 1989, which came into operation on 1 January 1990.

Where there is inconsistency between the two provisions, the later enactment is taken to have implicitly repealed the earlier.	Goodwin v Phillips (1908) 7 CLR 1 per Griffiths CJ at p.7

Because each counsel agreed, correctly in my view, that s.19 of the Local Court Act was the relevant source of any right of appeal, I have dealt with the appeal on that footing.

For the reasons I have endeavoured to express, I consider these appeals are outside the jurisdiction of this Court.	Each appeal is dismissed with costs.