Anderson Stuart & Ors v Treleaven & 1 Ors

Supreme Court of NSW|2000-06-16|Before: Santow J, Cross J, Kirby P, Samuels JA

INTRODUCTION 1 This is an application by the First Defendants, Ian G and Andrea M Treleaven, to be granted a certificate under s6 of the Suitors' Fund Act 1951 (NSW) ("the Act"). I have had the benefit of extensive written submissions from the First Defendants. There is no opposition from the Plaintiffs. Their appeal from the Strata Titles Board was successful before me thus grounding the present application for a certificate. The question is whether the conditions for its grant are made out. 2 Pursuant to s6 of the Act, if there has been a successful "appeal" against "a decision" of "a court "to the Supreme Court on a question of law or fact" the Supreme Court may, on application, grant to the respondent of the appeal an indemnity certificate. Each of those quoted elements must be satisfied. 3 In Builders Licensing Board v Pride Constructions Pty Limited (1979) 1 NSWLR 607 Cross J and in Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491 Kirby P and Samuels JA noted that for an indemnity certificate to be granted to an unsuccessful respondent they must show: (a) that there has been an appeal;

Has there been an appeal? 4 "Appeal" is defined in s2 of the Act as including "any motion for a new trial and any proceeding in the nature of an appeal". 5 In a judgment handed down on 8 May, 2000 I made what I would characterise as a decision in relation to an appeal on a question of law to this Court pursuant to s130 of the Strata Titles Act 1973 (NSW) by stated case under s101 of the Justices Act 1901 (NSW) from the Strata Titles Board ("the Board"). The First Defendants assert that the authorities clearly indicate that a case stated under s101 of the Justices Act 1901 is an appeal for the purposes of the Act or, if not an appeal then at least a proceeding in the nature of an appeal (Builders Licensing Board v Pride Constructions Pty Limited (supra) at 617; R v Hookham [No 2] (1993) 32 NSWLR 345. 6 I am satisfied this application is sufficient to satisfy the first element, namely "an appeal" for the purposes of s6 of the Act.

Was it an appeal against a decision? 7 In Ex Parte Neville [1966] 2 NSWLR 81, (1966) 85 WN (Pt 1) (NSW) 372 Maguire J, relying upon the judgment of the Court in McNamara v Malco Industries Limited (1964) 82 WN (Pt 1) (NSW) 89, held that despite an express intention to make final orders, as these orders had not actually been made there had been no decision. Subsequently, an application under s6 of the Act failed. The First Defendants however submitted, in my view correctly, that I should hold that since final orders were made by the Board this appeal was against a decision.

Was it a decision of a court? 8 The First Defendants submitted (para 5) that the Board, although an administrative tribunal, nevertheless has sufficient incidents of a court so as to make it properly regarded as a court for the purposes of the Act. In Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 McHugh JA held at 516 that "[t]he correct approach is for the Court to ask itself whether, bearing in mind the general purpose of the Suitors' Fund Act, Parliament must be taken to have intended that the Tribunal [or in this case the Board] should qualify as a court?" The original purpose of the Act was earlier described as being "to protect the litigant against a successful appeal as a result of an error of law made by a court." Kirby P and Samuels JA further articulated the purpose of the Act in Mir Bros. Developments Pty Limited v Atlantic Constructions Pty Limited at 494 in these terms: "The history of the legislation, and indeed its terms, make it plain that the purpose which must be kept in mind in its interpretation and application is the relief of litigants against the costs inevitably incurred when appeal review discloses an error of law requiring correction. The object is to ensure that the litigants do not, as in the past, bear the costs thereby occasioned but that these costs are spread, by way of the fund, to mitigate the hardship to litigants that would otherwise flow."

9 Kirby P in Australian Postal Commission v Dao noted (at 512) that it is the nature of the tribunal/board and not its name which must determine whether it qualifies as a 'court' for the purposes of the section. As Kirby P went on to say, "It would seem unlikely, given the history and purpose of the Suitors' Fund Act 1951, the increase since its enactment in the number and kind of statutory tribunals and the relationship established between the Tribunal and the Supreme Court, that appeals should lie on questions of law but not attract the protection of the Suitors' Fund Act because the Tribunal is not a court."

10 In the present case the First Defendants relied upon the functions of the Board, the existence of the right of appeal on a question of law, and the requirement that the Board ought to give reasons, as matters which support the proposition that the Board should be regarded as a court (para 5). The First Defendants further relied upon the fact that under the Strata Titles Act the Board had the power to summon witnesses (s136); administer oaths (s137); and to deal with contempt in the face of the Board (s138). Further factors relied upon include the fact that the Board was at all times constituted by a Magistrate (s98A); the Board took matters on referral from the Strata Titles Commissioner (s102) and the Board itself exercised an appellate jurisdiction with respect to decisions of the Commissioner (s128). 11 These functions, as was submitted by the First Defendants, do mirror the functions of the Medical Tribunal of New South Wales which was regarded as a court for the purposes of the Act by Powell JA in Walton v McBride (1995) 36 NSWLR 440. Indeed as I held in para 184 of my earlier judgment whilst the Board may not be a 'quasi-judicial' body, it is at least exercising a 'quasi-judicial function' and must, like a court, give reasons. 12 The First Defendants further rely upon the decision of Smart AJ in Crawley v The Owners Strata Plan 22481 [1999] NSWSC 950 (9 September 1999, unreported). That case dealt with an appeal by case stated against a determination of a member of the Strata Schemes Board (the successor to the Board under the Strata Schemes Management Act 1996) who was in turn deciding an appeal against orders made by the Strata Titles Commissioner. In paragraph 31 of that decision Smart AJ stated "No specific submissions were put as to costs. The hearing was much shortened by the course taken by the proprietors. Costs were sought in the summons. I order the proprietors of Strata Plan 22481 to pay Mr Crawley's costs. If eligible, the proprietors should have a certificate under the Suitors' Fund Act 1951."

13 Whilst I am reluctant to attribute too specific a meaning to Smart AJ's enigmatic use of the words "if eligible", I do note, as was pointed out by the First Defendants, words to such effect have been used in other judgments in relation to applications under s6. In VACC Insurance v BP Australia [1999] NSWCA 427 (22 November 1999, unreported) Fitzgerald JA stated "BP should have a certificate under the Suitors' Fund Act if qualified". References to "if eligible" or "if qualified" are standard expressions relating not to these basic jurisdictional requirements. Those requirements may be taken to be resolved in favour of the applicant. Rather they probably relate to eligibility in the narrower sense, namely the absence of disqualifying features as set out in s6(7) of the Act. 14 Smart AJ's indication that an indemnity certificate would or could be granted supports a fortiori the granting of a certificate in the present case. I take note of the First Defendants' submission that there is a stronger case for the Board to be classified as a "court" for the purposes of the Act then there is for the Strata Schemes Board. As was submitted: (i) the Strata Schemes Board consists not only of persons who are magistrates, but also of persons who are merely qualified for appointment as magistrates (s220(2) Strata Schemes Management Act 1996), whereas the Board was constituted only by magistrates (s98A Strata Titles Act 1973) and

(ii) under s198 of the Strata Schemes Management Act 1996 the Strata Schemes Board lacks the power to punish for contempt, whereas the Board has such a power (s138 Strata Titles Act 1973).

15 These factors highlight that if a certificate could be granted for an appeal from the contemporary Strata Schemes Board, this provides an even stronger case for the granting of a certificate from an appeal from its predecessor. It must be remembered that the Act is remedial legislation and should be given a beneficial construction, both as to meaning of "appeal" and of "court"; see Dao per McHugh JA at 515-6.

Conclusion 16 Thus, whilst not having to decide whether or not the Board is a "court" for constitutional purposes, due to the functions and legislative powers granted to the Board I hold that it is a court for the purposes of the Act.

Was it an appeal to the Supreme Court on a question of law or fact? 17 Clearly enough this was an appeal on a question of law, as my earlier judgment concludes (para 1 and following).

Application of discretion 18 Section 6(5) of the Act provides that the grant or refusal of an indemnity certificate shall be in the discretion of the Supreme Court. In Builders Licensing Board v Pride Constructions Pty Limited and in R v Hookham it was held that when (a) the attitude of the parties, the submissions and the arguments were perfectly proper, and

(b) there was nothing in the history of the litigation which would require the Court's discretion to be exercised against the applicant,

then the discretion should be exercised in favour. 19 I so conclude in the present case and exercise my discretion accordingly. It is entirely right that the respondent should have the compensation which the Act allows, when the decision appealed from clearly miscarried on a matter of law, as here.

OVERALL Conclusion 20 The requirements of s6 of the Act have been satisfied.

ORDERS 21 I order that the defendants Ian G and Andrea M Treleaven be granted a certificate under s6 of the Suitors' Fund Act 1951.

Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Justices Act 1901(NSW)

Suitors' Fund Act 1951(NSW)

Strata Titles Act 1973(NSW)

CITATION : Anderson Stuart & Ors v Treleaven & 1 Ors [2000] NSWSC 536 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1375/99 HEARING DATE(S) : By written submissions JUDGMENT DATE : 16 June 2000

COUNSEL : A Bouris (Solicitor) (Defendant) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : PRACTICE AND PROCEDURE - Suitors Fund Act - Necessary elements for certificate pursuant to s6 - Is the Strata Titles Board to be treated as having made a "decision" of "a court" - Factors pertaining to exercise of this Court's discretion to grant a certificate. LEGISLATION CITED : Justices Act 1901 (NSW), s101 Suitors' Fund Act 1951 (NSW), s6 Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 Builders Licensing Board v Pride Constructions Pty Limited (1979) 1 NSWLR 607 Crawley v The Owners Strata Plan 22481 [1999] NSWSC 950 (9 September 1999, unreported) Ex Parte Neville [1966] 2 NSWLR 81, (1966) 85 WN (Pt 1) (NSW) 372 CASES CITED : McNamara v Malco Industries Limited (1964) 82 WN (Pt 1) (NSW) 89 Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491 R v Hookham [No 2] (1993) 32 NSWLR 345 VACC Insurance v BP Australia [1999] NSWCA 427 (22 November 1999, unreported) Walton v McBride (1995) 36 NSWLR 440 DECISION : Requirements of s6 of Suitors' Fund Act 1951 (NSW) satisfied

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