Gill & Anor v Residential Tribunal & Ors [2001] NSWSC 896 | Case summary

Judgment 1 His Honour: Stephen Gill and Pamela Gill, formerly Stephen Maybury and Pamela Maybury, were the tenants of residential premises known as 193A Canterbury Road, Canterbury. There were a number of applications before the Residential Tribunal relating to their tenancy of those premises, and ultimately, on 29 September 2000, the Tribunal made certain orders, including an order for termination of the tenancy agreement, an order giving possession to the landlords, the second defendants, Michael Tuckerman and Paul James Devine, on 6 October 2000, and an order for payment by Mr and Mrs Gill to the landlords in the sum of $3,391.50 for arrears of rent. The plaintiffs have vacated the premises, although some of their possessions have remained therein and have been the subject of a continuing dispute. 2 In October 2000 the plaintiffs sought a rehearing in the Tribunal. This application was unsuccessful. On 7 March this year they filed a summons in this Court seeking to appeal against the decision of the Tribunal pursuant to s 62 of the Residential Tribunal Act 1998. That summons was subsequently amended by an amended summons filed on 26 April 2001. 3 The matter came before me in the Administrative Law Directions List on 20 March and on that day I ordered that the proceedings be referred to a Master pursuant to SCR Schedule D Pt 3 para 5. The matter ultimately came on for hearing before Master Malpass on 4th July 2000, and on 13 July the Master delivered judgment dismissing the appeal and the summons, and ordering the plaintiffs to pay the costs of the proceedings. 4 The plaintiffs subsequently filed a Notice of Motion on 9 August 2001 seeking leave to appeal against the judgment of the Master, and this matter has been mentioned in the Directions List a few times since then. When it was mentioned before me last Tuesday, I raised for consideration the question whether there was any right of appeal from the Master's decision to the Court constituted by a Judge of this Division, and the proceedings were stood over to today for determination of that issue. 5 Part 60 r 1A provides, inter alia, that a Master may exercise the powers of the Court in respect of the matters mentioned in Pt 3 of Schedule D to such Rules, and Pt 3 of Schedule D para 5 includes proceedings referred to a Master by a Judge where such proceedings arise under or out of various Acts, including the Residential Tribunal Act 1998 and the Residential Tenancies Act 1987. It is pursuant to this rule that the matter was referred for a hearing to a Master. 6 Part 60 r 10 provides that an appeal shall lie to the Court (that is, the Court constituted by a Judge) from any decision of a Master, except in any case where an appeal lies to the Court of Appeal pursuant to r 17. 7 Rule 17 of that Part allows for appeals to the Court of Appeal except that in cases arising inter alia in proceedings referred to in Schedule D Pt 3 para 5, in which case the leave of the Court of Appeal is required. 8 It follows therefore, by reference merely to the Rules, that where appeals from the Residential Tribunal are referred to a Master pursuant to Schedule D Pt 3 para 5, there is no appeal to a Judge, but there is an appeal to the Court of Appeal if the Court of Appeal gives leave. It is not without significance that the reference to proceedings under Schedule D Pt 3 para 5 were included in r 17 at the same time as paragraph 5 was inserted in Pt 3 of Schedule D, namely, Amendment No. 328 published in the Government Gazette of 21 May 1999. It is apparent that the object of the rule being so drafted was to prevent matters referred to the Master in these minor administrative appeals from coming back to a Judge for another hearing; which would defeat the purpose of referring them to the Master in the first place. 9 Mr Ash, who appears on behalf of the plaintiffs, nevertheless submits that, notwithstanding what appears in the Rules, there is an independent right of appeal from the Master to a Judge pursuant to s 118(3) of the Supreme Court Act 1970. That subsection, so far as material, provides: "A judgment given or an order made by a divisional master in any Division maybe set aside or varied by the Court (i.e., the Court constituted by a Judge: s 40(1))." 10 He has referred me to the history of s 118 and sections which he submits are related, namely ss 46 and 117A, and also to the Second Report of the Law Reform Commission on Supreme Court Procedure LRC 14 (1971), pursuant to which amendments were made to the Supreme Court Act 1970 by the Supreme Court (Amendment) Act 1972 prior to that Act commencing operation on 1 July 1972. 11 He submits that s 118 is clear in its terms and it provides a right of appeal which is in no way limited by the provisions of the Rules. In my view, there are a number of difficulties about this approach. The Report to which he refers drew attention to the earlier provisions of s 46 and, as paragraph 119 of the Report makes clear, the amendments to that section dealing with appeals from a single Judge of Appeal to the Court of Appeal constituted by three Judges were designed to clarify possible anomalies. 12 Following that, paras 204 and 205 recommended the enactment of what became s 117A in order to clarify the powers of a Master in the Court of Appeal and to enact provisions consistent with the new s 46. Para 206, proposing the new s 118, simply states: "We recommend the substitution of the new section 118. The new section is proposed for conformity in expression and effect with the new section 117A." 13 The Commission therefore was not concerned, and apparently did not intend by the new s 118, to create a fresh or alternative right of appeal by the enactment of s 118. At the time the Supreme Court (Amendment) Act 1972 was enacted, and at the time the Act and the Rules came into force, and for a significant period thereafter, the only matters dealt with by Masters in a Division were interlocutory matters or the limited type of certification and calculation matters which had traditionally been dealt with by the Master in Equity: see the Supreme Court Act 1970, Fourth Schedule, Schedule D, Part D following the initial report of the Law Reform Commission on Supreme Court Procedure LRC 7 (1969). 14 Accordingly, Pt 60 R 10 covered almost all the cases which could be heard by a Master in a Division. There were a couple of exceptions and these were covered by the original Pt 60 R 17 where there was an appeal to the Court of Appeal in the very limited type of case therein referred to. Over the years the powers and the jurisdiction of Masters have been considerably extended, as can be seen from the present extent of Schedule D, particularly Schedule D Pt 3. Accordingly, the provisions of Pt 60 R 10 and Pt 60 R 17 have been varied to limit the type of cases in which appeals can be brought from the Masters' decisions. 15 In my opinion, s 118 was not in 1970 or 1972 intended to provide for any appeals from a Master to the Court constituted by a single Judge in any case where an appeal did not lie under Pt 60 r 10 or Pt 60 r 17; and s 118 not having been amended significantly in the meantime, I am satisfied that it is still not the intention nor the effect of s 118 to provide rights of appeal where none exist under Pt 60. 16 There are other problems about giving s 118 the wider effect contended for on behalf of the plaintiffs. Firstly, no procedure for such an appeal or review is laid down and, more importantly, there is no indication in s 118 as to the nature of such appeal or review, whether it be an appeal stricto sensu, an appeal on a question of law only, an appeal by way of re hearing on the evidence before the Master or an appeal by way of re hearing de novo. This is a further indication that s 118 does not confer an alternative right of appeal. 17 In my view, s 118 merely expresses a general right for a review or appeal, but such right of review or appeal must be brought in accordance with the Rules and as constrained or limited by such Rules.

In Avard v Harrison (unreported - Equity Div - 13 July 1989), McLelland J said: "Under the present Rules, an appeal from a Master to a Court constituted by a Judge is the prescribed procedure for review of proceedings referred by a Judge to a Master and replaces the former procedure whereby it was open to a party aggrieved by a Master's certificate to apply to the Judge for an order discharging or varying that certificate. No doubt the procedure by appeal is intended to reflect the status which is given to the Masters by s 118 of the Supreme Court Act ." 18 There is nothing there, as I see it, which suggests that a party has rights under s 118 inconsistent or additional to the rights conferred by Pt 60 rr 10 and 17 respectively. 19 In Pollicino v Pollicino (unreported - Equity Division - 14 August 1997) and Micallef v Ofria [2000] NSWSC 750, Windeyer J referred to the procedure for bringing matters back to a Judge from a Master, but his Honour was dealing with the particular procedures of the Equity Division relating to certification and such like, and in the latter case his Honour said: "There is a significant difference between a Master's determination of an enquiry ordered by the judge as part of the proceedings as delegate of a judge, and a decision of a Master exercising the powers of the court under jurisdiction given pursuant to the rules where an appeal is an appropriate procedure." 20 In my view, nothing his Honour said in that case has relevance to the proceedings in this case, where the matter was referred for a full hearing to a Master pursuant to the power given by the Rules. 21 For these reasons, I am satisfied that the purported appeal is incompetent. The order of the Court is: Appeal incompetent; Notice of Motion filed 9 August 2001 dismissed with costs. oOo

Gill & Anor v Residential Tribunal & Ors

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