4 In accordance with order 12.1 of the orders made on 15 October 2001, the trustees settled a provisional list of members of the Community. Disputes arose about the provisional list and, in accordance with order 12.2, were referred for adjudication by a master. On 28 August 2002, Master McLaughlin published reasons for judgment in which he dealt with the matters in dispute: Radmanovich v Nedeljkovic [2002] NSWSC 763. One such matter related to four persons whose status as members of the Community was challenged because they were subject to sentences imposed by a church court. The four are Maksim Radmanovich (the first appellant), Drago Mijakovac (the second appellant), Stevan Dobrich (the third appellant) and Jovan Jamaraz. The Master held that none of the four persons subject to sentence should be included in the list of members.
Questions for decision
5 By their notice of appeal, the three appellants appeal from parts of the Master's decision based upon a certain construction of two of the 1950 rules. They take issue with the holdings that "the effect of article 4 is that a person who was a member of the Community who subsequently has been excommunicated thereupon ceases to be a member of the Community" and that "the fact of excommunication automatically, and without more, results in the person excommunicated being ineligible for membership and, in consequence, automatically ceasing to be a member". The latter conclusion is based on article 6.
6 The first issue debated before me was whether the appeal purportedly instituted by the notice of appeal is competent. On 25 September 2002, an ordinary summons for leave to appeal was filed in the Court of Appeal by the three persons named in the notice of appeal now before me. Thereafter, those persons took further steps directed towards having that application for leave to appeal heard and determined by the Court of Appeal. Subsequently, however, it appears that a question arose in their minds (or, at least, the minds of their advisers) as to whether that was the appropriate avenue of appeal or whether the appeal should, instead, be an appeal to the court constituted by a single judge. Steps to initiate an appeal of the latter kind were then taken by the filing of the notice of appeal of 29 November 2002. The competency of that appeal is the first matter that arises for determination by me.
7 If an appeal to the court constituted by a judge is the correct avenue of appeal, the appellants face the difficulty that such an appeal was initiated after the expiration of the period allowed by Part 60 rule 11(2) of the Supreme Court Rules with the result that, if the appeal is to be determined, there must be an order extending time. The appellants seek such an order. I must determine that application if I decide that the appeal to the court constituted by a judge is competent.
8 Assuming that both of the preliminary matters to which I have referred are decided favourably to the appellants, my third task is to determine the appeal itself. The course adopted on 9 April 2003, with the concurrence of both Mr Colyer who appeared for the appellants and Mr Glacken who appeared for the respondents, was that I heard submissions not only on the two preliminary questions but also on the appeal itself. At the conclusion of submissions, I reserved my decision on all issues, with the result that these reasons deal sequentially with all of the matters that were argued.
9 I should mention finally that, late in the hearing, the appellants sought to extend the grounds of their appeal. I heard competing submissions in relation to that and indicated that the application, like the other matters, would be dealt with in my reserved judgment.
The competency of the appeal
10 The question of the competency of the appeal - that is, whether it is properly brought before the court constituted by a judge or should be pursued in the Court of Appeal, initially by application for leave to appeal - depends on the interpretation of the relevant provisions of the Supreme Court Rules. Before turning to those provisions, I should give some further background about the processes that led to the decision of Master McLaughlin. After the matters of dispute concerning the provisional list of members had been referred to him but before he began his inquiry, Master McLaughlin noted that the parties were not in agreement as to the effect of order 12 and that they proposed to approach Young CJ in Eq to seek clarification. The matter was put in his Honour's list on 13 March 2002 and he made observations in the course of which he noted that it is not ordinarily open to a trial judge to say later what he or she meant by a final order already made: see Radmanovich v Nedeljkovic [2002] NSWSC 212. His Honour then went on, however, to comment on parts of order 12 as follows:
" What 12.1 of the order directed was that there be a provisional list of members settled by the trustees; ie the trustees were to produce a list of members which provisionally would stand as the list of members. It was to be a list of members, not a list of people who should be members; ought to have been members; or were qualified to be members, but a list of persons who were members as claimed by the trustees.
Step 12.2 was to allow the plaintiffs to say: (a) some of the people on that list, or all of the people on that list are not members; or (b) some people who are not on that list are members; and the Master would then adjudicate on that question."
11 Against that background, Master McLaughlin embarked upon the task envisaged by order 12.2. He did so by reference to the provisional list of members produced by the trustees and objections to that list advanced by the present appellants. He proceeded to consider the status of and circumstances pertaining to a number of persons and concluded that the members of the Community consisted of the first 89 persons named in a revised list, minus 9 persons who, in his judgment, were not members. No order for costs was made. The Master observed that, in terms of the orders of Young CJ in Eq, further questions of costs were reserved and that the costs of the determination by the Master would be dealt with by the judge accordingly.
12 Section 101 of the Supreme Court Act 1970 says that an appeal lies to the Court of Appeal from any judgment or order of the Court in a Division. This, however, is expressed to be subject to the rules. It follows that no appeal will lie to the Court of Appeal from the decision of Master McLaughlin in the present case if the rules make some contrary provision.
13 Part 60 rule 10 says that an appeal lies to 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 Part 60 rule 17. Part 60 rules 10 and 17 between them cover the whole of the ground dealing with appeals from Masters and divide that ground in a way that assigns particular and defined cases to the Court of Appeal and leaves all others, by way of residue, to be dealt with by appeal to the court constituted by a judge. It follows that, if there is to be an appeal to the Court of Appeal, a provision of Part 60 rule 17 specifying that avenue of appeal must be identified.
14 The provision of Part 60 rule 17 potentially applicable to the present case is that which deals with an appeal from any decision of the Court in a Division constituted by a master "upon a trial pursuant to Schedule D Part 3 paragraphs 1, 2, 3, 3A, 4(a), 8, 9, 17 and 17A". Such an appeal is declared to lie to the Court of Appeal in accordance with s.101, subject to leave of the Court of Appeal in cases covered by ss.101(2) and 101(4). Schedule D Part 3 sets out matters in respect of which Part 60 rule 1A(1) enables a master to exercise the powers of the court. Among these are matters referred to in paragraph 4 of Schedule D Part 3:
"4. Any -
(a) trial or hearing of proceedings (except with a jury); or
(b) matter (other than a matter in proceedings tried or to be tried with a jury),
where referred to a master by an order of a Judge or of the Court of Appeal."
15 The determination of Master McLaughlin with which I am currently concerned was in respect of something referred to a master by an order of a judge. That determination is accordingly within paragraph 4 of Schedule D Part 3. The crucial question is whether the subject of the reference to a master by order 12.2 made by the Chief Judge in Equity on 15 October 2001 was a "trial or hearing of proceedings" (so that the case is within paragraph 4(a) of Schedule D Part 3 and the appeal avenue is the one dictated by Part 60 rule 17 involving appeal to the Court of Appeal) or whether the subject of the reference to a master was a "matter" (so that the referral was under paragraph 4(b) and any appeal lies to the court constituted by a judge under Part 60 rule 10). Whether the subject matter of the referral to a master was the "trial or hearing of proceedings" or just a "matter" must, of course, be determined by looking at the judge's order.
16 Paragraph 4 of Schedule D Part 3 proceeds on the footing - which emerges from Part 60 rule 1A(1)(c) - that a judge may by order empower a master in one of two ways, that is, either to try or hear "proceedings" or to deal in some other way with a "matter". The structure of paragraph 4 is such that "matter" is regarded as something distinct and different from "trial or hearing of proceedings". In addition, there is a textual indication that a "matter" is (or, at least, will sometimes be) something that arises in the course of or forms part of "proceedings". This indication comes from the bracketed words in sub-paragraph (b): "other than a matter in proceedings tried or to be tried with a jury" [emphasis added].
17 The word "proceedings" has an indeterminate signification that is shaped very much by context. The meaning of the word has been discussed in a number of decided cases. I mention, in particular, Blake v Norris (1990) 20 NSWLR 300, Pasdale Pty Ltd v Concrete Constructions Ltd (1995) 59 FCR 446 and Reynolds v Panten (1999) 23 WAR 215. Because of the overwhelming importance of context, however, I do not think that any particular guidance can be derived from decisions on other provisions. In the context with which I am now concerned, "proceedings" are something that can be tried or heard. That, plus the textual indication to which I have already referred (ie, that a "matter", in the relevant sense, may be something "in" proceedings) leads me to the think that the applicable meaning of "proceedings" is that adopted by the Victorian Court of Appeal in Braeside v Brignell [1996] 1 VR 17 of an action, suit or cause as a whole.
18 On that basis, it seems to me that paragraph 4(a) is concerned with a situation where a judge has made an order in respect of an action, suit or cause initiated by appropriate originating process that has the effect of causing a master to be seised of the action, suit or cause in such a way that the master, rather than the judge, will try all relevant issues and hear and determine the controversy as a whole. Paragraph 4(b), which contemplates referral by a judge to a master of some "matter" that is not "trial or hearing of proceedings" but may be something arising "in" proceedings, must therefore be taken to be concerned with the situation where some discrete question for decision, forming part of or being incidental to the trial or hearing of proceedings, is referred by a judge to a master.
19 In the first situation, the referral puts the master in a position where he or she is to exercise all functions relevant to the trial or hearing of the proceedings, so that the result of the trial or hearing is determination of the proceedings by the master in the same way as if they had been dealt with wholly by a judge, with the master's decision having the same status and effect as a decision of a judge. That being so, it is logical and to be expected that appeal lies direct to the Court of Appeal. In a paragraph 4(b) situation, on the other hand, where the master determines some discrete question or issue forming part of or being incidental to an action, suit or cause with which a judge is dealing, the situation is one in which the master's function is auxiliary to that of the judge, so that there is logical consistency in any review of the master's decision by way of appeal being undertaken by a judge rather than the Court of Appeal.
20 This meaning of "proceedings" seems to me to have been adopted in the judgment of Moffitt P (with whom Hope JA and Hutley JA agreed) in Government Insurance Office of New South Wales v Weeks [1981] 1 NSWLR 713. That case involved an earlier version of Schedule D Part 3 to the Supreme Court Rules. Paragraph 1 of that version referred to:
"Trial of proceedings where the only matters in question are the amount of damages and costs."
21 Moffitt P observed that where in a proceeding both liability and damages are in issue the case did not fall within this paragraph. He went on to consider whether that result would be avoided by the making of an order for separate determination pursuant to Part 31 rule 2(a). The conclusion was that it would not. The rules envisage that, in such a case, there remains a single proceeding even though different questions are to be determined separately. Each such question exists within and as part of the single proceeding. That notion lends considerable weight to the conclusion that when paragraph 4(b) of Schedule D Part 3 in its current form refers to a "matter" it has in contemplation some part of a greater whole that is the "proceedings".
22 In the present case, the relevant proceedings are those in which Young CJ in Eq gave judgment on 15 June 2001 and made orders on 15 October 2001. Those proceedings were not thereby concluded, as is shown not only by the role created for a master under order 12.2 but also by his Honour's grant of liberty to apply. The referral to a master by order 12.2 was not a referral involving "trial or hearing" of those or any other "proceedings". It was, rather, referral of a discrete question forming part of the trial of the proceedings of which Young CJ in Eq was seised and in which the master's function was to be auxiliary to that of the judge in the disposition of the proceedings.
23 It follows that an appeal from the decision of Master McLaughlin now in question is an appeal in respect of a decision upon a "matter" to which paragraph 4(b) of Schedule D Part 3 refers. It is not, in terms of Part 60 rule 17(a) a decision of a master "upon a trial pursuant to Schedule D Part 3 paragraphs … 4(a) …". The correct avenue of appeal is accordingly to the court constituted by a judge, being the avenue specified in Part 60 rule 10. The appeal initiated by the notice of appeal filed on 29 November 2002 is therefore competent.
Extension of time for appeal
24 Part 60 rule 11(2) says that an appeal from a master to the court constituted by a judge is to be instituted within 28 days after the date on which the relevant judgment was given or order or decision was made "or within such extended time as the master or the Court may fix". Under Part 60 rule 11(1), the manner of instituting appeal is filing of a notice of appeal.
25 In the present case, Master McLaughlin's judgment was given on 28 August 2002. As I have said, an ordinary summons for leave to appeal was filed in the Court of Appeal on 25 September 2002 but the notice of appeal contemplated by Part 60 rule 11(1) was not filed until 29 November 2002. An extension of time under Part 60 rule 11(2) is therefore necessary if an appeal to the court constituted by a judge is to be pursued.
26 Generally speaking, four factors arise for consideration upon any application for such an extension of time. As stated in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942, they are the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent As Kirby P emphasised in Jackamarra v Krakover (1998) 195 CLR 516, however, there is an overriding obligation of the court, upon such an application (as in every other case), to do what is necessary for the attainment of justice.
27 In this case, it is particularly to be noted that action to initiate an application for leave to appeal to the Court of Appeal was taken within 28 days after Master McLaughlin's judgment was given, even though the correct initiating document was not filed for another 34 days. The respondents were thus put on notice promptly that the appellants sought to take the matter further. Delay in filing what, according to the conclusions I have already expressed, was the correct initiating process is explicable wholly by reference to a decision to pursue the matter through the wrong procedural channel. That shortcoming should be regarded as the result of an error of a technical kind by the appellants' advisers that should not be laid at the feet of the appellants themselves (see Stollznow v Calvert [1980] 2 NSWLR 749), particularly since it reflects their advisers' views on provisions of the Supreme Court Rules which may fairly be said to be productive of some doubt. Conclusions adverse to the appellants' application for an extension of time are, in my judgment, simply not open in relation to the issues of length of delay and reasons for delay.
28 As to whether there is an arguable case, my conclusion again favours the appellants. As will be seen, the issues are wholly issues of construction of the 1950 rules. The construction for which the appellants contend, centred upon the force to be given to the words "members" and "only" in article 4 and the meaning of "ineligible for membership" in article 6, is not fanciful or so devoid of plausibility as to be rejected out of hand. The propositions for which they contend are arguable.
29 On the question of prejudice, Mr Glacken pointed out, on behalf of the respondents, that the affairs of the Community have been for a long time in a state of suspension awaiting authoritative determination of membership issues so that a new managing committee may be elected and a new supervisory regime may come into operation in accordance with the orders of Young CJ in Eq. Those aims will not be enhanced and the interests of not only the respondents but also the general body of persons interested in the affairs of the Community will, he says, be prejudiced if there is further delay. For that reason, it is submitted that the decision of the Master should be left to stand.
30 I do not accept these submissions as to prejudice. In the particular context, the opportunity for the respondents to advance the submissions has arisen as a result of a technicality. The substance of things is that an appeal was initiated within time, albeit in an incorrect way. The appellants would be inappropriately prejudiced by a decision to refuse the necessary extension of time; and neither the respondents nor the other members of the Community will be inappropriately prejudiced by a decision to grant it.
31 In the particular context where the summons for leave to appeal was filed in the Court of Appeal within the period referred to in Part 60 rule 11(2) and the appeal to a single judge has now been argued, I am satisfied that the interests of justice will be best served by granting the extension of time the appellants seek.