NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE [2010] WASAT 39 (26 March 2010)

Greenwood and Legal Profession Complaints Committee [2010] WASAT 31

Lamac Developments Pty Ltd v Devaugh Pty Ltd [2002] WASCA 245; (2002) 27 WAR 287

Restifo and Legal Profession Complaints Committee [2009] WASAT 242

Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119

[124] The primary issue to be determined under this head is whether Roberts-Smith J's decision refusing leave to appeal under s 38(4) was a final or an interlocutory judgment. A final judgment is one which finally disposes of the rights of the parties: Sanofi v Parke Davis Pty Ltd [1982] HCA 9; (1981) 149 CLR 147 at 152. Lamac's counsel submits that the primary Judge's refusal of leave under s 38(4) was a final judgment. It had the result that the parties were bound by the arbitrator's award and that no further recourse was available to them outside the appeal structure of the court.

[125] At first sight this argument appears to be a persuasive one. The refusal of leave to appeal under s 38(4) is a far cry from procedural orders made in pre-hearing disputes pending the final determination of cases before the Court. However, as the New South Wales Court of Appeal made clear in Gosford City Council v Timbs, unreported; NSWCA 31; 21 July 2000, the question of whether an order is final rather than interlocutory is not to be determined by reference to the practical consequences of the order, but rather to the nature of the order itself, and in particular whether it finally determines the rights of the parties inter se.

[126] There is clear authority that an order granting leave to appeal, whether from an interlocutory or a final judgment, is itself an interlocutory order. The court in Sanofi, supra, Gibbs CJ, Stephen and Mason JJ said as follows at 153:

"It is always open to a court which has granted leave or special leave to appeal to rescind its order if it later appears that the leave or special leave should not have been granted."

[127] Just as leave to appeal, once granted, can always be revoked, so it will always remain open to parties to renew applications for leave, notwithstanding a previous refusal, in the event of changed circumstances. There is no reason in principle why leave to appeal under is in any different category. Indeed, there is persuasive authority to the effect that decisions refusing leave to appeal under that section are interlocutory rather than final. That was certainly the opinion of the South Australian Supreme Court in Civil Tech, which in this respect followed the findings of the Full Court of the Victorian Supreme Court in Costain Australia Ltd v F W Nielsen Pty Ltd ;

1. The modification of the operation of a provision of the SAT Act may be achieved by express words, or by implication from the provisions of the enabling Act: Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208 (Southside Autos) at [79] and at [82] - [85] (Buss JA, McLure JA and Newnes JA agreeing). Such an implication might be discerned from an inconsistency between a provision of the SAT Act and a provision of the enabling Act: see, for example, Southside Autos at [82] ­ [85] (Buss JA, McLure JA and Newnes JA agreeing). In that event, the enabling Act provision would prevail: s 5 of the SAT Act.
2. In Restifo at [24] ­ [25], the Tribunal noted that there may be inconvenience to the parties to a review and inefficiency in the manner in which complaints against legal practitioners are dealt with by the Tribunal, if the Tribunal's powers on a review are confined to the exercise of the powers of the LPCC under s 424 of the LP Act. There may be an argument that this inconvenience or inefficiency amounts to an inconsistency between the provisions of the LP Act and the SAT Act, so as to manifest an intention to modify the operation of the SAT Act. An alternative view, however, might be that notwithstanding that some inconvenience or inefficiency may result, the provisions of Pt 13 of the LP Act would nevertheless be capable of application if the Tribunal's powers on a review under s 435 correspond to those of the LPCC under s 424 and s 425.
3. A further consideration relevant to the argument identified in Restifo would be the inter-relationship between Pt 13 of the LP Act and the SAT Act. It is well-established that where two or more enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly, and so as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation: Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722 and at 723 ­ 724 (Kirby P), and see also Southside Autos at [64] (Buss JA) and the cases cited therein.
4. Two other provisions of the SAT Act may also be relevant to the question whether the Tribunal's powers go beyond those of the LPCC under s 424 and s 425 of the LP Act. By virtue of s 29(2) of the SAT Act, s 29(1) does not limit the powers given by the SAT Act or the LP Act to the Tribunal. Further, the orders which may be made by the Tribunal under s 29(3) include 'any order the Tribunal considers appropriate'.

(2002) 27 WAR 287

(1987) 9 NSWLR 719

(1981) 149 CLR 147