(3) For the purpose of the application of subrule (2), Part 49 Division 3 of the Uniform Civil Procedure Rules 2005 shall be read as if:
(a) 'registrar' were substituted for 'Associate Judge' wherever occurring, and
(b) except in rule 49.11 (3), 'rule 16.1 of the Supreme Court (Corporations) Rules 1999 ' were substituted for 'this Division' wherever occurring, and
(c) in rule 49.8 (1), 'rule 16.1 of the Supreme Court (Corporations) Rules 1999 ' were substituted for 'rule 49.4', and
(d) there were no reference to the District Court in rule 49.10 (2)."
16 Before considering the effect and operation of this rule, I should refer briefly to two preliminary matters. First, the question whether Redwood is capable of initiating and pursuing such an appeal at the behest of its directors following the making of the winding up order has not been raised: see, for example, Rock Bottom Fashion Market Pty Ltd v HR & CE Griffiths Pty Ltd [2000] 2 Qd R 573. I merely note that the stay now in place may mean that, in terms of s.471A(1) of the Corporations Act 2001 (Cth), Redwood is not, at the moment, "being wound up in insolvency", so that the result of the stay is as described at p.391 of the report of Austral Brick Co Pty Ltd v Falgat Constructions Pty Ltd (1990) 21 NSWLR 389, a case concerning earlier legislation. The second preliminary matter concerns the meaning of "the Court" in rule 16.1. The SCCR do not appear to contain a definition of "the Court"; but it seems to have been accepted by the parties that importation of Part 49 Division 3 of UCPR by SCCR 16.2 means that the reference to "the Court" should, in accordance with UCPR 49.7A(a), be construed as a reference to "the Supreme Court constituted by a Judge of the Supreme Court". I am content to proceed on that basis.
17 Having regard to SCCR 16.1(2), it is relevant to quote UCPR 49.8(1), one of the provisions in Part 49 Division 3 (which consists of UCPR 49.7A to 49.13):
"An appeal from a decision of an associate Judge of the Supreme Court under rule 49.4 is to be instituted by filing a notice of motion."
18 In accordance with SCCR 16.1(2)(c), the reference here to "rule 49.4" is to be read as a reference to SCCR 16.1. Also, the reference to an appeal from a decision of an associate judge under rule 49.4 must be read as a reference to an appeal from a winding up order made by a registrar. Whether SCCR 16.1(2) also has the effect of requiring the reference in UCPR 49.8(1) to "a notice of motion" to be read in some modified way is a question that was not canvassed before me. It was not suggested that the interlocutory process filed on 1 August 2007 was not, for these purposes, a "notice of motion".
19 A question of importance that was canvassed is whether the notice of motion contemplated by UCPR 49.8(1) is a notice of motion "in" the proceeding in which the winding up order was made by the registrar. I am of the opinion that that question must be answered in the affirmative. It is true that UCPR 49.8(1) does not say, in so many words, that the notice of motion is to be filed in the proceeding in which the decision at first instance was made. But that textual gap is filled by UCPR 49.11(1) dealing with a cross appeal:
"Any party to proceedings the subject of an appeal under this Division may institute a cross-appeal by filing a notice of motion in the proceedings."
20 The first reference here to the "proceedings" is, in a case such as the present, a reference to the proceedings in which the winding up order was made. UCPR 49.11(1) recognises that it is those proceedings that are "the subject of" an appeal "under this Division", that is, an appeal of the kind referred to in UCPR 49.8(1). The "proceedings" mentioned at the end of UCPR 49.11(1) are also the proceedings in which the winding up order was made. It must therefore be intended that the notice of motion uinder UCPR 49.8(1) instituting the appeal itself is to be filed in those same proceedings.
21 It is to be noted, however, that UCPR 49.8(1) and 49.11(1) are concerned only with the method of initiating an appeal and cross-appeal. Once an appeal has been initiated, it will have its own parties. That is not only made plain by UCPR 49.13 (which speaks of "[a] party to an appeal under this Division") but consistent with the nature of an appeal as such. The parties to an appeal may or may not correspond with the parties at first instance. In a context such as the present where a winding up order is challenged, neither the Corporations Act nor the rules of court say who may initiate the appeal. In practical terms, the appellant is likely to be the company subjected to the order (assuming no obstacle under s.471A). But it cannot be said that that company - obviously a necessary party at first instance - is the only competent appellant. In Re Rick Wilson Pty Ltd (1982) 7 ACLR 354, McLelland J said (at p.355):
"An appeal against a winding up order may be brought only by a party to the winding up proceedings, or with the leave of the appellate court, by a person, who, although not a party to the winding up proceedings, is bound or prejudicially affected by the winding up order."
22 The particular regime with which I am here concerned resembles that created by s.101 of the Supreme Court Act 1970 in that, as I have said, it makes provision for the initiation of an appeal but does not identify competent appellants. It is therefore pertinent to quote the following observation of Kirby P in Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504 at p.511:
"Under the Supreme Court Act 1970, s 101, the right of appeal is not given to a party as such. The foundation of an appeal is the judgment or order of the Court in a Division, which is challenged. Ordinarily, the appellant will indeed be a party to the primary proceedings: see, eg, Sydney Legacy Appeals Fund v Tanna (1980) 48 LGRA 98 at 104. However, a person affected by an order has
a right to be heard in respect of the order before it is made (see Annetts v McCann ( 1990) 170 CLR 596 at 598), or after it is made in that person's absence: see John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 482. In circumstances where their interests are clearly affected, non-parties have standing to challenge orders having consequences for them: see, eg, John Fairfax & Sons Ltd v Police Tribunal (at
467, 470, 482); see also John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 153, 169; Robinson v Western Australian Museum (1977) 138 CLR 283. The effect of Rolfe J's decision that the existence of undertakings in current proceedings before a court afforded a 'reasonable excuse' for non-compliance with a
notice under s 33 of the Australian Securities Commission Act (Cth), according to its terms, not only affected the Australian Securities Commission in the instant case. Unless set aside, it will, in this State at least and quite possibly in other States and Territories, continue to affect the Australian Securities Commission's interests and the conduct of a great many recipients of such notices and their advisers. The Court should not blinker itself against such realities."
23 A right of appeal may thus subsist in a person who was not a party at first instance.
24 Just as a person who was not a party at first instance may be a competent appellant in the way to which McLelland J and Kirby P referred, so too a person who was a party at first instance may not be a proper party to an appeal and a person who was not a party at first instance may be a proper - even necessary - party to the appeal. This last proposition is illustrated by the decision of the Court of Appeal in Scott-Young v Registrar of the Government & Related Employees Appeal Tribunal [2001] NSWCA 293.
25 In that case, a police officer ("A") applied for promotion to a particular position. The successful applicant was Baker. "A" appealed to the relevant tribunal. The Commissioner of Police was the only other party. The appeal was dismissed without "A" having been heard. Baker, although not a party to "A's" application to the tribunal, participated in the hearing, to the extent of asking that it proceed despite the absence of "A". After the tribunal dismissed his application, "A" appealed to the Court of Appeal. The only named respondents were the tribunal and the Commissioner. By the time the matter came before the court, the only respondent was the Commissioner who had indicated that a submitting stance would be adopted. The court was concerned about the absence of a contradictor and, more particularly, about the absence of Baker whose tenure could be affected by the outcome of the appeal. The court ordered that Baker be joined as a party to the appeal. Mason P referred (at [17]) to the court's "duty to ensure that procedural fairness is done to affected persons in a proper case". Giles JA said (at [23] - [24]):
"[23] The appellant submitted that the appeal to this Court was properly constituted because the relevant parties before the Tribunal, that is, the appellant and the Commissioner of Police, were parties to the appeal. The premise was that within Pt 51 r9 the appellant and the Commissioner of Police were parties and the relevant parties before the Tribunal. Nothing in the Police Service Act or the Government and Related Employees Appeal Tribunal Act appears to talk of parties to proceedings before the Tribunal. Section 37 of the latter Act confers a right to be present and heard on, amongst others, the employee in the position of Sergeant Baker in the present case. Realistically Sergeant Baker was a party to the proceedings before the Tribunal even though not named as such in the formal record, and he did in fact appear and was heard.