PENRITH WHITEWATER STADIUM LTD v LESVOS ENTERPRISES PTY LTD

HEARING DATE(S): 28 May 2007 JUDGMENT OF: Basten JA at 1

DECISION: (1) Appellants to file written submission in reply responding to the contentions relied upon by the respondents in their written submissions, by 15 June 2007; (2) The parties be prepared to argue the matters raised by the notice of contention at the hearing of the appeal on 5 and 6 July 2007; (3) The costs of the motion be costs in the appeal.

CATCHWORDS: APPEAL - from Registrar, Court of Appeal - application to set aside order of the Registrar striking out a notice of contention - power of single judge of appeal to review decision of Registrar - Supreme Court Act 1970 (NSW) ss 42, 46 - Uniform Civil Procedure Rules, Part 49, Div 4 - Supreme Court Rules, Prt 61 - PROCEDURE - notice of cross-appeal not required when no variation of order sought - PROCEDURE - notice of contention - striking out notice - delay in filing and service - challenge to findings of trial judge

Civil Procedure Act 2005 (NSW), s 135, Schedule 6, cl 9 Constitution, s 73 LEGISLATION CITED: Supreme Court Act 1970 (NSW), ss 42, 46 Supreme Court Rules 1970 (NSW), Part 51, rr 18, 21, 58, Part 61, r4 Trade Practices Act 1974 (Cth), ss 51AA, 52, 82 Uniform Civil Procedure Rules, r 12.8, Part 49, Div 4

Driclad Pty Ltd v Federal Commissioner of Taxation (1966-68) 121 CLR 45 CASES CITED: Emmett v Hornsby Shire Council [2002] NSWCA 75 Queensland v JL Holdings Pty Ltd (1996-97) 189 CLR 146 Wentworth v Graham (2002) 55 NSWLR 638

Penrith Whitewater Stadium Ltd - First Appellant PARTIES: Penrith City Council - Second Appellant Lesvos Enterprises Pty Ltd - First Respondent Koffee Pty Ltd - Second Respondent

COUNSEL: M.S. Jacobs QC/P.J. Bambagiotti - Appellants A. Street SC/D. Price - Respondents

SOLICITORS: Gadens Lawyers, Sydney - Appellants Andresakis & Associates, Parramatta - Respondents

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40199/07

28 May 2007 PENRITH WHITEWATER STADIUM & ANOR v LESVOS PTY LTD & ANOR Judgment 1 HIS HONOUR: This matter involves an application to set aside an order of the Registrar pursuant to which he struck out a notice of contention filed by the respondent in these proceedings. There is no record before me of his reasons for taking that step. The notice of contention was out of time and involved a number of grounds, ten in all, of which different complaints were made in relation to different grounds.

Jurisdiction 2 The first question I need to consider is the extent to which I have power, sitting alone, to consider the matters sought to be raised on the application. The exercise of power by the Registrar was an exercise of a power conferred on a single judge of this Court by s 46(2)(b) of the Supreme Court Act 1970 (NSW) to make any order, or give any direction in any appeal or other proceeding, but not an order or direction involving the determination or decision of the appeal or other proceedings. 3 The powers of a single judge to make orders are also conferred on a Registrar of this Court by Part 51 Rule 58 of the Supreme Court Rules 1970, which are still in force. Under that rule the Registrar can exercise the powers of a judge of appeal under s 46(1) and (2), but not to grant a stay or injunction except to dismiss a matter for want of prosecution in accordance with r 12.8 of the Uniform Civil Procedure Rules ("UCPR"), or under s 135 of the Civil Procedure Act 2005 (NSW), but not to stay a judgment or order of the Court. 4 No issue is raised as to the power of the Registrar to strike out the notice of contention if otherwise appropriate. The Registrar, having made such a decision, the present application is brought, arguably pursuant to s 46(4), which provides: (4) The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal or an order made or direction given by a Judge of Appeal. 5 To confer that power on a Court of Appeal is to confer the power on three or more judges of appeal, pursuant to s 43(1) of the Supreme Court Act. In other words, that is not a power conferred on a judge of appeal sitting alone. The powers which are conferred on a single judge of appeal do not in terms extend to the variation of an order of a Registrar, except pursuant to a remnant to be found in Part 61 Rule 4 of the Supreme Court Rules. Most of that Part has been repealed with the enactment of the UCPR. Rule 4, however, remains and states: "The powers of the Court under this Part may in respect of the registrar of the Court of Appeal be exercised by a Judge of Appeal." 6 The rules in Part 61 otherwise conferred powers on the Court, but they no longer do so. There is a question as to whether there is some equivalent part of the UCPR now in force which could be picked up pursuant to Schedule 6 cl 9 of the Civil Procedure Act so that it could be relied upon to confer the relevant power on a single judge of this Court to review the decision of the Registrar, such a power having been the kind which originally existed in Part 61. 7 That power is not easy to identify. The equivalent powers in relation to review of decisions of registrars appear to be those now found in Part 49 of the UCPR, and in particular, Division 4 dealing with review of decisions of registrars other than judicial registrars of the District Court. The cross-referencing of those rules picks up only the equivalent earlier parts of the District Court Rules and not of the Supreme Court Rules. 8 There is, in my view, a real issue as to whether this Court has the relevant power. There is authority which suggests that it does. The only reported authority that I have identified is Wentworth v Graham (2002) 55 NSWLR 638, where Santow JA held that s 46(4), was not inconsistent with a power of review exercisable under Part 61, r 4, though that was at a time when the power conferred under Part 61 was still to be found in the relevant earlier rule, prior to its repeal, and it is not insignificant that that power was given by way of "review" of a decision, rather than by way of a power to "discharge or vary", as appears in s 46(4). 9 The power was also exercised by Sheller JA in Emmett v Hornsby Shire Council [2002] NSWCA 75, where his Honour held, without discussion of the particular point, that Part 61 Rule 4 allowed him to review a decision of the Registrar dismissing an appeal for want of prosecution. 10 On balance, I am not persuaded that I have the relevant power, but I will in any event indicate the orders, or rather the approach that I would adopt if I did have the power, and in doing so, I will indicate what course should be taken in the present matter.

Striking out notice of contention 11 On 23 April 2007 McColl JA, dealing with an application for a stay of the judgment below, granted the application and granted expedition of the hearing of the appeal, on the undertaking of the claimants seeking the stay to prosecute the appeal with due diligence. Directions which were given following her Honour's orders involved a timetable for filing various processes, including a possible amended notice of appeal and a cross-appeal or notice of contention. There were also directions for the filing of written submissions and setting down the appeal for hearing on 5 and 6 July 2007. 12 The complaint made before the Registrar was that the notice of contention filed by the respondent was not in a proper form and was filed and served outside the time provided in the directions. It is sufficient to say that it was filed approximately six days late, and a following four or five days elapsed, including a weekend, before the document was served. Accordingly, the document was some ten days late by the time it was received by the appellant. 13 So far as the contents of the document are concerned, the complaint is that it contained a number of paragraphs which went beyond the terms permitted for a notice of contention. No particular complaint is made of the first two grounds. Grounds 3 to 7 inclusive dealt with questions of the damages awarded below. Grounds 8 and 9 relied upon a cause of action under ss 52 and 51A of the Trade Practices Act 1974 (Cth). Ground 10 asserted an entitlement to damages under s 82 of that Act equivalent to, or in excess of, the damages in fact awarded.

Content of notice 14 It is convenient to deal first with the complaint in relation to the content of the notice of contention. As was explained by counsel appearing for the respondents, the intention was to give notice, as the notice stated, that the orders of the Court below should be affirmed on grounds other than those relied on by the Court. To the extent that the notice referred to damages calculated on a basis other than that adopted by the trial judge, and stated that the damages should be calculated in an amount greater than the calculation undertaken by the trial judge, it should not be read as seeking any variation of the order of the trial judge in favour of the respondents, that order relevantly awarding a specified sum in an amount of approximately $490,000. 15 Although grounds 8 and 9 sought to rely upon a cause of action other than that upheld by the trial judge, again there was no order sought in terms which would be different from the order made by the trial judge. Accordingly, I do not think there is merit in the proposition that this notice should have been by way of cross-appeal rather than notice of contention: see Part 51, rr 18 and 21. 16 It was put that some benefit may flow to the respondents in relation to costs, if the notice of contention is unsuccessful, which might not flow if a cross-appeal were required. Otherwise than avoiding some liability as to costs (about which I do not comment), it is difficult to see what substance there is in a complaint that a notice of contention is not as appropriate as a notice of cross-appeal once it is accepted that no variation could be obtained to the order made by the trial judge. In any event, I do not think it correct to say that the notice of contention is not the proper process. 17 The criterion for determining which process is required turns on whether it is sought to discharge or vary the "decision" below. The term "decision" may have a variable meaning depending on its context. The present context is the relevant process for the purpose of an appeal. Although dealing with the language of s 73 of the Constitution, the comments of Barwick CJ and Kitto J in Driclad Pty Ltd v Federal Commissioner of Taxation (1966-68) 121 CLR 45 are apposite; at p 64 their Honours said: "The taxpayers lodged notices of appeal to the Full Court which were expressed as if the appeals were against the reasons of Taylor J relating to the 'B' part of the fund rather than against the orders that he made. Needless to say, this was erroneous, because it is of the nature of appeals, as s 73 of the Constitution recognizes, that they lie only against 'judgments, decrees, orders and sentences', not against reasons. The word 'judgments' in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment." 18 An appeal is a challenge to the orders made below, not to findings or reasons. A cross-appeal has the same purpose. Accordingly, a notice of cross-appeal is not required unless the respondent seeks to vary the orders of the Court below.

Delay 19 That leaves the question as to whether the notice of contention should properly have been struck out on the basis that it was filed late in the manner to which I have referred. The directions which were made following McColl JA's order of 23 April 2007 required that the first step to be taken was the filing of an amended notice of appeal, which was to be done by 1 May. The next step was the notice of cross-appeal or notice of contention, which was to be filed and served by 4 May. Thereafter, the appellants were to file and serve the red, black and blue appeal books by 8 May, and their written submissions by 18 May. Other than with respect to the notice of contention, those dates have passed, but they have been complied with. 20 The next step is for the respondents to file and serve their written submissions by 1 June 2007, which is this Friday. Counsel assured the Court that this deadline would be met. As a matter of substance, the appellants' opportunity to respond to matters raised in the notice of contention will be served by their entitlement to file submissions in reply, by 15 June 2007. It is only after receipt of the respondents' submissions in support of the notice of contention that they will be in a position to respond in detail to the matters raised. 21 It was put by senior counsel for the appellants that knowledge of the contents of the notice of contention prior to the filing and service of their written submissions might have been of assistance in formulating and structuring the submissions. I understand the possibility that that may be so, and that there may have been matters raised, which would not otherwise be raised, or matters which might have been expressed differently, had the terms of the contentions been known at the time the appellants' written submissions were prepared. The notice of contention was in fact only provided to the appellants four days before the date on which they were required to file their written submissions. I understand in those circumstances that there has at least been a degree of inconvenience incurred, although the service on 14 or 15 May, (Monday or Tuesday) of the notice of contention would have at least allowed, other things permitting, some three or four days within which to consider amendment to the written submissions, but that did not take place, as I understand the case to be. There is no reason to go into the explanation of that, nor is any required. 22 What seems clear is that there would be no undue prejudice in permitting the notice of contention to stand and to allow the appellants an opportunity to respond to the contents of the submissions in support in due course, as they undoubtedly will do. No doubt, if the notice of contention did not stand, they would be relieved of that burden, but in my view, if there are issues of substance raised by the notice of contention, as there appear to be, which go to matters litigated below and which might provide an alternative basis for upholding the orders made by the trial judge, those matters should be allowed to be agitated on the appeal. The proper way to do that would be to allow the notice of contention to be relied upon: cf Queensland v JL Holdings Pty Ltd (1996-97) 189 CLR 146 at 154.

Conclusions 23 The effect of that would be to extend the date within which the notice of contention was to be filed from 4 May until 15 May. I would have directed that the date by which the notice was to be filed and served be so extended, so that the notice of contention would have been filed within the time permitted by the directions of the Court. 24 If, for that purpose, it were necessary to set aside the order of the Registrar of 21 May, striking out the notice of contention and I had power to do so, I would do so. On the basis that I lack that power, the matter will have to be dealt with by the Court on the hearing of the appeal on 5 and 6 July 2007. To that end, I would direct that the appellants file written submissions in reply by 15 June, in accordance with the timetable, which submissions should respond to the contentions and the arguments raised by the respondents in their written submissions. I would also direct that both parties be ready to deal with each of the matters raised in the notice of contention at the hearing of the appeal.

Costs 25 That disposes of the substantial matter in dispute. There is a question then as to the appropriate order as to the costs of the motion today. In a sense, on the approach I have adopted, the respondents have been successful in relation to the matters raised, but it is said that they have sought an indulgence, and therefore the appellants should either obtain the costs of the motion in any event, or, as a fallback position, the costs should be the appellants' costs of the appeal. The respondent says that the costs should be costs in the appeal. 26 In my view, if I had power to make appropriate orders to give effect to the views expressed above, and on the basis that the matter should properly have been dealt with in the ordinary course of events by responding to the notice of contention after the written submissions had been received, the prejudice would have been minor. The expense which has been incurred on both sides by the applications, first to the Registrar and now a single judge, is no doubt unfortunate. 27 In the result, and assuming that I had the relevant power, I would direct that the costs of the motion be costs in the appeal. I will make that order, and if there is a different view taken about my powers by the Court hearing the appeal, that orders can, of course, be made or varied at the discretion of that Court. 28 I make the following directions:

(1) Appellants to file written submission in reply responding to the contentions relied upon by the respondents in their written submissions, by 15 June 2007.

(2) The parties be prepared to argue the matters raised by the notice of contention at the hearing of the appeal on 5 and 6 July 2007.

(3) The costs of the motion be costs in the appeal. **********

18/09/2007 - Typographical error - Paragraph(s) 17

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