Citation : RE HUDSON GALLERY; APTHORP -v- GOLDBAY CORPORATION PTY LTD [2006] WALLC 1

Practice and procedure - Application to strike out appeal from a costs order made by Judge of the Liquor Licensing Court - Whether s 60(1)(e) of the Supreme Court Act requires grant of leave by Judge of Liquor Licensing Court - Effect of s 4A of the Supreme Court Act - Whether appeal incompetent

Interpretation Act 1984 (WA), s 5

Anderson v Littlemore [1985] WAR 157

Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285

1 PULLIN JA: This is an application to strike out the appeal as incompetent.

2 The background of this matter is that the appellant was ordered to pay costs to the respondent by Judge Greaves in the Liquor Licensing Court in proceedings in which the respondent had brought a complaint under s 117 of the Liquor Licensing Act.

3 The appellant has appealed against the costs order. The appeal was instituted pursuant to s 28 of the Liquor Licensing Act 1988 (WA) which reads:

"(1) Subject to subsections (2) and (3), a person who is a party to the proceedings and is dissatisfied with a decision of the Court may appeal to the Supreme Court.

(2) No appeal lies against a decision of the Court except upon a question of law.

(3) No appeal lies against a decision of the Court made on review of a determination made by the Director, except upon a question of law.

(a) shall be heard and determined by the Court of Appeal_;_ and

(b) must be instituted within the time, and in accordance with the procedure, prescribed by rules of the Supreme Court.

4 The respondent has applied to dismiss the appeal as incompetent. The contention is that s 60(1)(e) of the Supreme Court Act applies and requires leave to be granted by Judge Greaves and that, absent the grant of leave, the appeal is incompetent.

"(1) No appeal shall lie to the Court of Appeal -

...

(e) without the leave of the judge or the master making the order, from the order of a judge or a master made with the consent of the parties, or as to costs only which by law are left to the discretion of the judge or the master;"

"... a master of the Supreme Court appointed under the provisions of this Act and includes a duly appointed acting master;"

7 By reason of s 5 of the Interpretation Act, "Judge" is defined to mean a Judge of the Supreme Court.

8 The respondent accepts the foregoing but relies upon s 4A of the Supreme Court Act which it argues has the effect that s 60(1)(e) must be read as to restrict appeals of this kind to be appeals that can only be instituted if leave is granted by the Judge of the Liquor Licensing Court.

9 I should explain a little of the background to s 4A which was inserted into the Act in 1991.

10 In Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285, French J was dealing with a claim for damages under s 82 of the Trade Practices Act for a contravention of s 52. The applicants claimed interest based solely on s 32 of the Supreme Court Act 1935 (WA), it being contended that the power to award interest under s 32 was picked up by s 79 of the Judiciary Act. French J held (at 293) that s 32 of the Supreme Court Act did not apply to the cause of action created by s 82 of the Trade Practices Act and could not be so transmuted by s 79 of the Judiciary Act as to apply it in the exercise of jurisdiction by the Federal Court under s 82. His Honour said that a contrary view would be inconsistent with a limitation that s 79 picks up State laws "with their meaning unchanged". His Honour concluded that s 79 of the Judiciary Act would not authorise the exercise of the powers under s 32 on a subject matter to which it never applied directly.

"For the foregoing reasons, the applicants' claim for interest is refused. In view of the position adopted by the respondent on the hearing of the question, I will make no further order as to costs. I simply venture the additional observation that if these conclusions about the application of s 32 are correct, there may be some need for legislative consideration to ensure that State courts which now have jurisdiction to entertain claims under s 82 and other federal causes of action, are able to exercise the same power to award interest as the Federal Court may now do by virtue of s 51A of the Federal Court of Australia Act.

12 Parliamentary materials show that the version of the Supreme and District Courts (Miscellaneous Amendments) Bill first tabled in Parliament did not include a provision that would insert s 4A into the Supreme Court Act. Instead, the Bill contained provisions that would amend s 32 of the Supreme Court Act in response to the decision in Pavich v Bobra Nominees Pty Ltd and allow the Supreme Court to aware prejudgment interest when exercising federal jurisdiction or cross-vested jurisdiction. See the Second Reading Speech by the Attorney General the Hon J M Berinson, on 27 March 1991, "Hansard" Legislative Council, page 556. In Committee it was decided instead to insert s 4A. See "Hansard", Legislative Council, 16 May 1991, page 2017. The Attorney General there said:

"Recently, the Committee of State and Commonwealth Solicitors General examined this Bill and formed the view that it would be preferable to draft clause 4 in more general terms. There are two reasons for this: Firstly, because a more general provision will pick up any other jurisdiction the Supreme Court comes to exercise; and secondly, because the State Parliament thereby avoids expressly legislating concerning the exercise of Federal jurisdiction which could give rise to questions of constitutional power. Instead of the proposed new section 32(1a) of the Supreme Court Act, the amendment therefore proposes to insert a new section 4A in that Act which refers to the court's powers when exercising any jurisdiction, whether arising under the law of the State or otherwise. Members will note that this new section 4A is not confined to the power to award interest. This is because it has been suggested by the Solicitor General that if Mr Justice French's reasoning in Pavic[h] v Bobra Nominees is correct, the problem may be wider than merely the power of the court to award interest and could affect all general provisions."

13 I now turn to the proper construction of s 4A of the Supreme Court Act which reads:

"The provisions of this Act, including those conferring powers on the Court or a judge, apply in respect of any jurisdiction conferred on or vested in the Court, whether under a law of the State or otherwise."

14 The meaning of s 4A appears to me to be plain. It applies the provisions of the Supreme Court Act [and that includes provisions of the Act conferring powers on the Court or a Judge] "in respect of any jurisdiction conferred on or vested in the Court whether under a law of the State or otherwise." I need not consider in this case the application and effectiveness of the section in relation to conferral or vesting of jurisdiction under laws other than laws of the State because in this case the conferral of jurisdiction is a conferral by a law of the State, namely the Liquor Licensing Act.

15 In short, provisions of the Act, and that would include s 60(1)(e), will apply if they purport to apply. Does s 60(1)(e) purport to restrict appeals generally including appeals from the Liquor Licensing Court? In my opinion, plainly not. Section 60(1)(e) refers only to judgments or orders of a Master of the Supreme Court or a Judge of the Supreme Court. If the appeal is an appeal from the decision of a Master or Judge of the Supreme Court, and it concerns a consent order or costs which are left to the discretion of a Judge of the Supreme Court or a Master of the Supreme Court, then if the Supreme Court Judge or Master is exercising jurisdiction conferred on or vested in the Court under a law of the State, there will be no right of appeal unless leave is granted by the Judge of the Supreme Court or the Master of the Supreme Court who made the order. The section does not speak about appeals from the Liquor Licensing Court. It is therefore not applied by s 4A. Section 4A does not make any provision for amendment to the meaning of any of the provisions which are to apply to matters being heard in the Court as the result of conferral of jurisdiction by State Acts other than the Supreme Court Act.

16 Reference was made by the parties to Anderson v Littlemore [1985] WAR 157 in which a similar argument was being advanced concerning the requirement for leave in relation to appeals from the District Court of Western Australia. Section 79(1) of the District Court of Western Australia Act conferred the right of appeal on parties in that Court to the Full Court of the Supreme Court.

17 In my opinion, that case provides little guidance here because it involved a consideration of the particular provisions in the District Court Act and was a case which preceded the enactment of s 4A. Nevertheless, I can mention that Burt CJ said (at 158):

"Section 60(1)(e) of the Supreme Court Act goes directly to the statutory right of appeal itself and it denies that right unless leave of the judge making the order sought to be appealed from has been obtained. It conditions the jurisdiction of this Court to entertain the appeal. It is not of the 'way' in which the appeal is to be made. It cannot be drawn into the District Court Act so as to condition the right of appeal which is granted to a dissatisfied party by s 79(1)(a) of that Act.

It is for this reason that I do not think that s 60(1)(e) of the Supreme Court Act is within the meaning of s 79(2) of the District Court of Western Australia Act, part of or within the idea of the 'way' in which an appeal is made."

18 The reference to the "way" in which an appeal is made was a reference to that word which appears in s 79(2) of the District Court legislation. This passage I have quoted, indicates that the case does not provide any guidance to the issue here, but the passage contains the comment that s 60(1)(e) of the Supreme Court Act "cannot be drawn into" the District Court legislation to condition the right of appeal. Just as the District Court legislation did not achieve that purpose nor, in my opinion, does s 4A draw into the Liquor Licensing legislation the requirement for a grant of leave under s 60(1)(e).

19 I would therefore dismiss the application to strike out the appeal.