Builders Licensing Board and Sperway Constructions (Syd.) Pty. Ltd. and Another [1976] HCA 62

High Court of Australia|1976-07-01|Before: Murphy JJ, Stephen J, Mason J, Mahoney J, Reynolds J

High Court of Australia Barwick C.J. Stephen, Mason, Jacobs and Murphy JJ. Builders Licensing Board and Sperway Constructions (Syd.) Pty. Ltd. and Another [1976] HCA 62

In this matter I have had the advantage of reading and considering the reasons for judgment prepared by my brother Mason. I entirely agree with his conclusion and the reasons he expresses therefor: I find no need to add anything to what he has written.

I would dismiss this appeal for the reasons stated in the judgment of Mason J.

The respondent was the holder of a builder's licence under the Builders Licensing Act, 1971 N.S.W. ("the Act"). It was served with a notice to show cause pursuant to s. 27(1) of the Act alleging that it had been guilty of improper conduct in carrying out building work. The notice alleged that a complaint had been made to the appellant Board and appointed the place and date for an inquiry to be held pursuant to s. 27. The inquiry commenced before the Chairman of the Board on 25th June 1974. A solicitor appeared for the appellant for the purpose of adducing evidence to establish the grounds alleged against the respondent. Counsel appeared for the respondent to deny the charges and to say that the respondent intended to offer no evidence and that it would rely on its rights of appeal. He then withdrew, leaving the matter to proceed ex parte.

The Board made a determination adverse to the respondent. From this determination an appeal was taken to the District Court pursuant to s. 31 of the Act. There it was submitted for the respondent that notwithstanding its failure to adduce evidence before the Board, it was entitled to call evidence on the appeal and the Board was bound to call evidence in support of the grounds upon which the respondent had been required to show cause. It was argued that if no evidence were called by the Board the respondent was bound to succeed. These propositions were contested by counsel for the Board. In essence the respondent's submission was that the appeal was a hearing de novo. The learned District Court judge acceded to this submission and proceeded no further in the appeal so as to allow the correctness of his ruling to be determined in the Court of Appeal.

The appellant then issued a summons seeking, inter alia, an order directing the learned judge to hear and determine the appeal by way of rehearing. By majority (Street C.J. and Mahoney J.A., Reynolds J.A. dissenting) the Court of Appeal dismissed the summons [10a] and the matter now comes to this Court pursuant to special leave to appeal from the order of the Court of Appeal.

An appeal is not a common law proceeding. It is a remedy given by statute (Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1] ; Commissioner for Railways (N.S.W.) v. Cavanough [2] ). Upon an appeal stricto sensu the question considered is whether the judgment complained of was right when given (Ponnamma v. Arumogam [3] ), that is whether the order appealed from was right on the material which the lower court had before it.

(1931) 46 C.L.R. 73, at p. 108. 2. (1935) 53 C.L.R. 220, at p. 225. 3. [1905] A.C. 383, at p. 388.

An appeal stricto sensu is to be distinguished from an appeal by way of rehearing of which the most notable example has been the appeal to the English Court of Appeal provided for by the Supreme Court of Judicature Act 1873, ss. 18-19 and the Rules of Procedure contained in the Schedule to the Act of 1875. It was provided that the appeal should be by way of rehearing and that the court should have power to take fresh evidence and draw inferences of fact (see O. 58, rr. 1, 4). The appeal had its origin in the jurisdiction of the Court of Appeal in Chancery established by 14 & 15 Vict. c. 83 to rehear cases determined in Chancery. This appeal by way of rehearing involves rehearing of the cause at the date of the appeal, that is "by trial over again on the evidence used in the Court below; but there is special power to receive further evidence" (In re Chennell; Jones v. Chennell [4] ). On such an appeal the rights of the parties must be determined by reference to the circumstances as they then exist and by reference to the law as it then exists; the appellate court may give such judgment as ought to be given if the case at that time came before the court of first instance. But this appeal by way of rehearing did not call for a fresh hearing or hearing de novo; the court does not hear the witnesses again. See generally the Victorian Stevedoring Case [5] ; Da Costa v. Cockburn Salvage & Trading Pty. Ltd. [6] .

(1878) 8 Ch. D. 492, at p. 505. 2. (1931) 46 C.L.R., at pp. 107-109. 3. (1970) 124 C.L.R. 192, at p. 208.

It was observed by Viscount Sankey L.C. in Powell v. Streatham Manor Nursing Home [7] , that "There are different meanings to be attached to the word "rehearing" ". The appeal to Quarter Sessions in New South Wales is frequently described as a rehearing although the Justices Act, 1902, as amended, contains no specific provision to that effect. In truth the appeal to Quarter Sessions is most aptly described as a hearing de novo because, even if it be the defendant who appeals, the informant or complainant starts again and has to make out his case and call his witnesses. The appeal to Quarter Sessions is the outcome of historical development and its only utility for present purposes is that it provides an illustration of what is in truth a hearing de novo, although, as I have said, it is frequently described as a rehearing.

Another illustration of a similar kind is furnished by Phillips v. The Commonwealth [8] . Section 20(1) of the Commonwealth Employees Compensation Act 1930-1956 provided that a person affected by a determination of the Commissioner might appeal to a County Court against the determination and the court should have jurisdiction to hear and determine the appeal. The section went on to say "such appeal may be in the nature of a rehearing". Of the sub-section the Court had this to say [9] :

the form of proceeding for which the sub-section provides is not an appeal in the strict sense at all. What the section does is to provide for the judicial review of administrative decisions of a particular character and upon any such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it. 1. (1964) 110 C.L.R. 347. 2. (1964) 110 C.L.R., at p. 350.

In so saying the Court was expressing the view, which accords with the accepted practice, that there is a hearing de novo before the County Court, the nature of the proceeding before the Commissioner not lending itself to an appeal in which the County Court could be confined to the materials before the Commissioner or his delegate.

Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. Despite some suggestion in argument to the contrary, I do not read Ex parte Australian Sporting Club Ltd.; Re Dash [10] as enunciating such an absolute rule. There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo and I exclude for present purposes the case of an appeal to a federal court exercising the judicial power of the Commonwealth under Ch. III of the Commonwealth Constitution. The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.

On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.

But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.

I turn now to the relevant provisions of the Act. It prohibits the carrying out of building work unless the person who carries out the work or the person on whose behalf the work is carried out is the holder of a licence (s. 9(1)). An owner builder who holds a permit is excepted from the prohibition. It is the Board's duty to deal with applications for licences (s. 10) and with complaints against licensees (s. 27).

Part IV contains a series of provisions which are headed "Disciplinary Provisions". Section 23 contains a catalogue of acts or activities which it designates as improper conduct on the part of a licensee. Section 24 enables complaints to be made to the Board against licensees on various grounds, including the ground that the licensee has been guilty of improper conduct.

Upon receipt of a complaint the Board is required to consider it and "if it is of the opinon that the nature of the complaint warrants it so doing" it shall cause a notice to be issued calling upon the licensee to show cause why any licence held by him, or why he, should not be dealt with under this part (s. 27(1)). The Board may without receiving a complaint, if its investigations warrant it so doing, cause such a notice to be issued (s. 27(3)). A notice shall, inter alia, give particulars of the grounds upon which the defendant is required to show cause (s. 27(4)). The Board is then directed to cause an inquiry to be held "into the grounds upon which the defendant has been called upon to show cause" (s. 27(6)). The inquiry is to be held before a Board or a member of the Board appointed by it and shall be held in open court (s. 28(1)). The determination shall be given at a meeting of which a quorum of the Board is present. The defendant may be represented by a barrister, solicitor or agent and the Board or the member conducting the inquiry may receive in evidence written submissions in answer to the notice "but is otherwise bound by the rules of law relating to the admissibility of evidence" (s. 28(3)(b)(i)). The Board may allow a barrister, solicitor or member of the Public Service, instructed by the Board, to appear for the purpose of adducing evidence tending to establish the grounds alleged in the notice; it may call and receive evidence as to any matter relevant to the inquiry; and it may, subject to s. 13 of the Oaths Act 1900, require any evidence to be given on oath (s. 28(3)(ii), (iii) and (iv)).

The Act does not authorize the members of the Board to administer an oath but they derive authority so to do from s. 33 of the Interpretation Act, 1897 N.S.W., as amended.

Although there is no specific provision requiring the Board to make a transcript of proceedings before an inquiry the requirement in s. 30(1), to which I shall shortly refer, that the Board shall consider the evidence given at the inquiry, whether it be held by the Board or a member, places an obligation on the Board to insure that a transcript is made of proceedings before an inquiry.

After the inquiry has been held the Board may make any of the determinations listed in s. 30(1). It may determine that no further action be taken; it may caution or reprimand the defendant; it may suspend the licence held by or on behalf of the defendant; it may cancel the licence and disqualify the holder permanently or for a period from holding a licence. It is provided that the Board may make such of the determinations listed "as to the Board may seem proper after considering the evidence given and produced at the inquiry".

The determination has no effect until notice of it is served on the defendant and the time limited for appealing has expired and, where an appeal is lodged, until the appeal is dealt with or withdrawn.

Section 31 enables an applicant for a licence or permit or for the variation of a licence, or a defendant under Pt IV who is aggrieved by any determination of the Board in relation to his application or any determination made by the Board under s. 30, to appeal to a District Court. Any such appeal shall be made in accordance with the regulations and "shall be dealt with by way of rehearing" (s. 31(2)). The District Court may confirm the determination of the Board or substitute for that determination any determination that the Board might have made (s. 31(3)). The decision of the District Court in respect of the appeal shall be final and shall be deemed to be the determination of the Board (s. 31(4)). There is no express provision enabling the District Court to receive further evidence.

The inquiry under s. 28 has some of the characteristics of a judicial hearing. The notice contains particulars of the grounds alleged against the defendant, the issues are susceptible of judicial determinations, there is a hearing which is to be in "open court", the defendant may be legally represented, the rules of evidence are to be applied and there is the implied obligation to record the evidence that is given. On the other hand the prescribed procedures have a number of features which indicate that the appeal to the District Court cannot be conveniently or readily undertaken if the Court is to be confined to the materials adduced at the inquiry and which also indicate that considerations of fairness to the defendant make it the more likely that the District Court appeal was to involve a hearing de novo.

It will be noticed that the holding of the inquiry under s. 28 and the making of the determination by the Board under s. 30 are two distinct and separate proceedings, though the Board is required to consider the evidence taken at the inquiry. One member of the Board may hold the inquiry, whereas it is the Board which makes the determination. The only function of the inquiry, it seems, is to receive evidence and perhaps hear argument. Certainly the person holding the inquiry is not empowered to make findings and all that the Board is required to consider before making its determination is the evidence given at the inquiry. It is not even required to consider the argument addressed to the inquiry, nor, indeed, is there any requirement that a transcript of argument be made for later consideration by the Board.

The inquiry is into "the grounds upon which the defendant has been called upon to show cause" (s. 27(6)). The Board is not expressly required to rule upon these grounds; it is only required to make an ultimate determination under s. 30, no doubt after reaching some conclusion as to the grounds alleged. But the fact remains that the scope of the inquiry is in terms limited to the grounds stated in the notice and that it does not extend to the ultimate determination to be made by the Board. This in itself creates obstacles to the reception of evidence and the making of submissions directed to the ultimate determination and not to the grounds stated in the notice. Yet this determination is to be made by the Board without the benefit of a hearing before it and without any appearance by the defendant or by any legal representative on his behalf. And it is a determination which may be made without any obligation to give reasons.

The consequence of all this is that it cannot be supposed that the Parliament intended to so confine the District Court in hearing an appeal under s. 31. This conclusion is reinforced by a consideration of the severe consequences which flow from the cancellation or suspension of a licence occasioned by a determination adverse to the holder. Such a decision constitutes a deprivation of a valuable privilege. It is not reasonable to conclude that Parliament intended that such a result could ensue from a determination by the Board in accordance with the prescribed procedures unless there exists an appeal to the District Court which involves a hearing de novo.

The final consideration which supports this view is that s. 31 confers a right of appeal not only from determinations of the Board under s. 30 but also from determinations relating to applications for licences or permits or for variations of licences. It is common ground that determinations of the latter class do not involve any inquiry or hearing and that in consequence the appeal to the District Court from them cannot be limited to the materials before the Board but must involve a hearing de novo. This in itself serves to demonstrate what the expression "by way of rehearing" means in s. 31(2).

In the result I am of opinion that the majority in the Court of Appeal were correct in holding that the District Court is bound to receive the evidence of the witnesses and that there is an onus on the appellant to present its case in that Court. I would dismiss the appeal.

The appeal to the District Court provided for in s. 31(2) of the Builders Licensing Act, 1971 N.S.W., is required to be "dealt with by way of rehearing". The basis of the appellant's application to the Supreme Court and of its argument on this appeal was that the word "rehearing" has a distinct connotation in law, namely, that the appellate tribunal will rehear the matter of appeal on the evidence given in the place whence the appeal is brought and that no further evidence can be received unless the statute specifically so provides or unless the context indicates that the appellate tribunal is to have such a power. The submission is based on the use of the word "rehearing" in various rules or statutes providing for the nature of an appeal from a single judge to a Court of Appeal or a Full Court. There is, first, O. LVIII, r. 2 of the Rules of Court in the First Schedule to the Supreme Court of Judicature Act, 1875, 38 & 39 Vict. c. 77 U.K., the rule considered together with r. 5 by the Court of Appeal in In re Chennell; Jones v. Chennell, per Jessel M.R. [11] , when he said: "All appeals are by way of rehearing, that is by trial over again, on the evidence used in the Court below; but there is special power to receive further evidence." His words were quoted by Dixon J. in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [12] . Dixon J. was there concerned to distinguish an appeal in the sense of a review by a superior Court of the decision of another Court "to redress the error of the Court below" (per lord Westbury L.C. Attorney-General v. Sillem [13] either in fact or law on the material before that Court below from the appeal by way of rehearing. But his words and his quotation of the words of Jessel M.R., taken by themselves and outside the question with which he was dealing, have tended to lead to a notion that on a rehearing a power to receive further evidence must be specially conferred. There is no basis for the notion.

(1878) 8 Ch. D. 492, at p. 505. 2. (1931) 46 C.L.R. 73, at p. 107. 3. (1864) 10 H.L.C. 704, at p. 724 [11 E.R. 1200, at p. 1209].

The provision in the 1875 Judicature Rules O. LVIII, r. 5 relating to further evidence and the need for special grounds and special leave before it might be adduced was not the grant of a power which on any established meaning of the word "rehearing" or any established practice relating thereto would not otherwise have existed but was rather a restriction which went beyond the practice in respect of rehearing which was current at the time when the rule was introduced. The concept of "rehearing" was one taken from the Chancery Courts.

A re-hearing, strictly speaking, and as distinguished from an appeal, is the hearing over again before the same Judge or jurisdiction a cause already argued and decided: but as an appeal from a Vice Chancellor or from the Master of the Rolls to the Lord Chancellor is regarded as a re-hearing, and is governed by the same rules, they may conveniently be considered together. Smith, Practice of the Court of Chancery, 7th ed. (1862), vol. 1, p. 714.

In the following pages the author states the nature of the petition of rehearing and the petition of appeal at some length. First, the decree must have been drawn up but the docquet of decree must not have been enrolled, since after that the decree could only be varied by appeal to the House of Lords, or by a new bill, either a bill of review or a bill in the nature of a bill of review: ibid., p. 714. For the effect of enrolling a decree was to make it the decree of the Lord Chancellor, ibid., p. 701, and it may here be noted that the Court of Appeal in Chancery which was created by 14 & 15 Vict. c. 83 was given the jurisdiction, power, authority and duty exercised and performed by the Lord Chancellor (s. 6) though the jurisdiction, power and authority of the Lord Chancellor sitting alone on appeals was preserved (s. 11). There could be more than one rehearing: ibid., p. 717. The time for appealing to the Lord Chancellor or the Lord Justices was five years but the time could be enlarged: ibid., p. 719. On the hearing of a petition of appeal or rehearing the appellant's counsel was entitled to begin excepting where a defendant appealed from the whole of a decree. In that event the plaintiff was entitled to begin: ibid., p. 723; Blackett v. Bates [14] . Upon an appeal from part of a decree the whole case was open to the respondent, but if the respondent opened the whole case then the appellant could do the same and the cause was regarded in the same light as if for the first time presented for hearing: ibid., pp. 723-724. The appeal from a decree of the Master of the Rolls or of a Vice Chancellor being regarded as a rehearing, it was competent for a party to read evidence before the Court of Appeal, which was not read at the original hearing provided it could have then been received; but the Court would not allow the parties to bring forward new evidence taken after the decree, nor could they examine de novo. The Court, however, had jurisdiction to require the production and examination before itself of a party to a cause, although he might not have been orally examined in the Court below. The Court might also examine witnesses viva voce. On a rehearing, depositions taken on the part of the defendant might be received, though not read on the original hearing. A party on a special application might obtain an order to prove viva voce on a rehearing documents which were not in evidence at the former hearing. Where evidence was used on a rehearing which was not used on the former hearing, that circumstance was taken into consideration in disposing of the costs. Upon any appeal or rehearing by way of appeal, the Judge's notes of the viva voce evidence were prima facie deemed to be sufficient note thereof: ibid., pp. 724-725.

After the publication of the seventh edition of Smith, questions of procedure on appeal continued to arise. Thus in In re Wiltshire Iron Co. [15] , Lord Cairns when he was one of the Lord Justices of the Court of Appeal in Chancery said [16] :

I should be very sorry to introduce into winding-up cases any greater degree of laxity of practice than already exists; still, some indulgence must be allowed in these cases, inasmuch as the issues are not so distinctly brought out in them as in cases brought before the Court by means of regular pleadings. An application, moreover, to admit fresh documents, the genuineness of which can be tested with certainty, stands on a very different footing from an application to admit fresh parol evidence after the pinch and pressure of the case has been sustained. The present application is to admit proof of documents which, if they exist, are undoubtedly material, and I think that justice requires the evidence to be admitted, but the applicant must of course pay the costs of the present application, and even if he should be successful on the rehearing it will remain to be considered whether he ought not to pay further costs. 1. (1868) L.R. 3 Ch. App. 443. 2. (1868) L.R. 3 Ch. App., at p. 449.

In Kent v. Freehold Land and Brick-Making Co. [17] where one defendant only appealed, Lord Cairns, by now Lord Chancellor, allowed an appeal and on that appeal dismissed the appeal against all defendants. Counsel called the attention of the Lord Chancellor to the form of decree which dismissed the bill against all defendants though the Company only had appealed. The report reads [18] :

The Lord Chancellor said that an appeal in Chancery was a re-hearing, and that the Court had power to deal with the whole case. 1. (1868) L.R. 3 Ch. App. 493. 2. (1868) L.R. 3 Ch. App., at p. 495.

Lastly it may be noted that on the hearing of an appeal to the Lords, no new matter could be proved but only such as was insisted on and proved at the hearing below. Smith op. cit., p. 738.

It is clear that a rehearing was a fresh trial of the matter with procedural rules designed by the Court of Chancery to suit its particular methods of proof and adduction of evidence but with variation or developments thereof as justice required. That a decision should be given on the facts and the law as they existed at the date of rehearing was no more than a necessary consequence of the nature of an appeal by way of rehearing. When the Court of Appeal was instituted within the Supreme Court of Judicature the rules made provision for a rehearing but with limitations akin to but somewhat stricter than the old Chancery practice, a practice which any reader of "Bleak House" will know had not escaped criticism!

This excursion into the past has been necessary in order to dispel the notion that the word "rehearing" has a meaning different from its ordinary natural meaning. It has not; but at the same time any court having control over its own procedures can determine how the rehearing shall be conducted. The fact that the Supreme Court of Judicature in England and the legislature in various New South Wales statutes (see for example the Equity Act, 1901 and the Supreme Court Procedure Act, 1900) has adopted in respect of appeals there dealt with a procedure which limits the right to call fresh evidence does not change the meaning of the word "rehearing".

How far fresh evidence will be received, in the absence of statutory provision and subject to considerations of fairness, reasonableness and justice, depends upon the procedure of the court to which the appeal lies. The procedure may be found in its rules or, if there are no rules governing the matter, or no established practice, then by direction of the court on the procedure to be followed. Cf. Administration of Justice Act, 1924 N.S.W., s. 19 in relation to the procedure for taking any step in a civil cause or matter. In the absence of statutory provision or of rules governing the procedure of established practice, the adoption of one or another of the courses open, a rehearing de novo or a rehearing on the material before the person or body from whom the appeal is brought with the reception of further evidence, involves the exercise of a judicial discretion applying principles of fairness and reasonableness. The procedure adopted will depend largely on the nature of the appeal - whether it is from the exercise of an administrative discretion, or from a decision of an administrative tribunal on a question of fact, or the decision of a judicial tribunal on such a question. It will also depend upon the questions in issue in the appeal. Moreover, it may be fair to allow a respondent in the tribunal at first instance to produce further evidence but it may not always be fair to allow the moving party to reframe the case which he made before the tribunal at first instance, a principal of fairness which recalls the old Chancery rules which I have explored.

The Builders Licensing Act is silent on the procedure to be adopted on the appeal. It provides that the appeal shall be made in accordance with the regulations. "Regulations" is defined in s. 3 to mean "regulations made under this Act". There have been no such regulations made.

There is a general provision in the District Court Rules that the procedures to be observed in relation to an appeal "shall be the procedures prescribed in respect of an action, subject to such modifications to those procedures as may be necessary to give effect to this rule" (District Court Rules Pt 6, Div. 2, r. 14). These words are directed to the procedures for institution of an appeal and carriage thereof rather than to the procedure to be adopted at the hearing. The procedure to be adopted on the rehearing was therefore something which fell to be determined by the District Court itself. There was no established practice, so it was for Judge Leslie to determine what procedure should be followed so that the interests of fairness and justice would be met but the time of the Court and the parties not unnecessarily wasted.

Judge Leslie decided that on the appeal before him the matter should be heard as if it were an appeal from a purely administrative decision, one which had been reached without any hearing in any real sense. This decision apparently envisaged a presentation of evidence de novo. At least he determined that the appellant before him, the respondent to this appeal, was entitled to present evidence.

This decision was open to Judge Leslie. It was, and still is, open to him to adopt a procedure whereby the parties may use the full transcript which was taken of proceedings before the tribunal or such part thereof as either of them think fit. The time of the District Court is no more to be wasted in 1976 than was the time of the Lord Chancellor in 1866 or of any other court rehearing a matter on appeal. But despite the course which the present respondent adopted of not appearing before the statutory tribunal, a course very dangerous to its interests, justice probably requires in the particular circumstances of this case that it be given a fairly liberal opportunity for further viva voce examination of witnesses before the tribunal as well as for the presentation of its own evidence. It does not follow that the same liberality would necessarily be extended to those who in the future pursued such a course as did this respondent before the administrative tribunal.

Expressions distinguishing the general categories of appeal should be consistent and appropriate. Rights of appeal from administrative bodies as well as courts are often expressed to be in the nature of or by way of rehearing. Yet "appeal by way of rehearing" does not have a single well-established meaning. Without more, it is not clear whether the material before the body appealed from may or must be taken into account or whether fresh evidence is admissible. Statutory definitions of the various methods of appeal, perhaps in a general Interpretation Act would save much judicial time and public expense. Specific provisions should govern the admission or exclusion of fresh evidence and regulate the use by the appeal tribunal of the material before the original body.

The Builders Licensing Act 1971 N.S.W., s. 31(2) provides "any appeal shall be dealt with by way of rehearing". The interpretation of this is almost an exercise in judicial legislation.

The appellant submitted that the distinction between "appeal by way of rehearing" and "appeal" is that the former authorizes the court to take account of changes in the law since the hearing from which the appeal is brought (Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan, per Dixon J. [19] ). If this were the only distinction, it would impose upon the words "by way of rehearing" an extremely limited meaning which they do not themselves convey. In Dignan's Case, Dixon J. was really addressing himself to the question whether changes in the law could be taken into account on an appeal under s. 73 of the Constitution, not whether a rehearing embraced an entertainment of fresh evidence.

In my opinion, on the appeal by way of rehearing in s. 31, fresh evidence may be given as of right. The appeal may thus be described as a hearing de novo, as the majority of the New South Wales Court of Appeal held. On the appeal, the District Court is put in the position of the Builders Licensing Board. This appears not only from the word "appeal", but from the provisions of sub-ss. (3) and (4). The Court is to make its determination in the same way as the Board did, that is, after considering the evidence produced to the inquiry (see s. 30(1)). That evidence is given according to the usual rules of evidence except for any written submissions by the defendant (see s. 28(3)).

At a glance

Court

Decision date

Before

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Judgment (52 paragraphs)