Southwell v Specialised Engineering Services [1990] NTSC 27; 70 NTR 6; 101 FLR 175 (4 September 1990)

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COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Kearney J.(1) CWDS Appeal - nature of appeal from Master - whether grounds of appeal to be specified - meaning of rehearing de novo - procedure on appeal - Rule 77.05(7), S.C. Rules. Practice and Procedure - appeal from Master - contents of nature of appeal - Rule 77.05(7) and Form 77A in S.C. Rules. Cases applied: Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281 Southern Motors Pty. Ltd. v Australian Guarantee Corporation Ltd. (1980) VR 182. Cases referred to: R v Pilgrim (1870) LR 6 QB 89 Butler v E.Z. Co. of Aust Ltd [1975] TASStRp 2; (1975) Tas SR 9. Rawlings v Gower (1988) Tas R 12. Traut v Faustmann Bros. Pty Ltd ; Meyering v Northern Territory of Australia ; Burns Philp Trustee Co Ltd v Saret (unreported, Martin J, 5 May 1988) HRNG DARWIN #DATE 4:9:1990 Counsel for the appellant: A. Wyvill Solicitors for the appellant: Philip and Mitaros Counsel for the respondent: J.E. Reeves Solicitors for the respondent: Mildrens. ORDER JUDGE1 The defendant applied for an order under Rules 24.01 and 24.05 that the action be dismissed for want of prosecution. The Master dismissed the application. The defendant appealed unsuccessfully against the decision under Rule 77.05. The decision on appeal is reported only on the point of the nature of the appeal from the Master. The nature of the appeal 2. The document of 29 March 1990 instituting the appeal to this court sets out four grounds of appeal, each alleging an error by the Master in coming to his decision of 22 March. In this respect the document is informative; it accords with Form 77A, prescribed for the purposes of the appeal against the Master. However, Rule 77.05(7) provides:- "The appeal shall be by re-hearing de novo of the application to the Master but each party may, subject to proper objections to admissibility - (a) rely on an affidavit used before the Master and on evidence given orally before him; (b) by special leave of the Judge, rely on an affidavit or oral evidence not used or given before the Master." (emphasis mine) The origin of Rule 77.05(7) in its present form is traced in Southern Motors Pty Ltd v Australian Guarantee Corporation Limited ; the nature of the appeal for which it provides is discussed at pp 190-

(1976) 2 NSWLR 281 at pp 297-8, Glass J.A. categorized the different types of "litigious processes" which are commonly known as "appeals". He proceeded to grade them - "- - in ascending order, in accordance with the width of the corrective power exercised by the Appeal Court." 3. The litigious process in which the appellate court has the widest corrective power was :- "(f) Appeals involving a hearing de novo, eg appeals from a Court of Petty Sessions to a Court of Quarter Sessions. All the issues must be re-tried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time; Sweeney v Fitzhardinge (1906) 4 CLR 715." 4. As Lush J said in R v Pilgrim (1870) LR 6 QB 89 at p 95 in relation to appeals to quarter sessions:- "- - the justices are not limited to the evidence before the petty sessions, but they have to hear the whole matter de novo, and the issue is the same, and the justices are put in the same position

as the justices in the Court below. It is only in cases in which the particular statute giving the appeal limits the inquiry to the same evidence, that the quarter sessions are precluded from going into fresh evidence, . . . .but where there is no such limitation, either expressly or by implication, the matter is at large, and the quarter sessions are to rehear the whole matter, and give their judgment upon all the evidence that is brought before them." (emphasis mine) 5. It is clear from para (b) in Rule 77.05(7) that the appeal from the Master is not a full blown hearing de novo in the sense of a quarter sessions appeal described by Lush J above, since special leave must be obtained before evidence "not used or given before the Master," can be relied on; cf. the position in Tasmania as reviewed in Butler v E.Z. (Co. of Aust Ltd. [1975] TASStRp 2; (1975) Tas SR 9 and Rawlings v Gower (1988) Tas R 12. In general, then, Rule 77.05(7) provides for a rehearing de novo, limited to the materials before the Master unless special leave is obtained. This in fact renders the nature of the appeal somewhat indistinguishable from that type of appeal categorised by Glass J.A. in Turnbull's case (supra) as "Appeals from a Judge by way of rehearing." In this connection I bear in mind the cautionary note as to the utility of classifying appeals, sounded by Lockhart J in Traut v Faustmann Bros. Pty. Ltd. [1983] FCA 137; (1983) 48 ALR 313 at p 322. 6. Although in light of para (b) in Rule 77.05(7) it may be something of a misnomer to describe this appeal as a "rehearing de novo", weight must nevertheless be given to the expression "de novo" in Rule 77.05(7); I consider that the observations of Glass J.A. in Turnbull's case apply. The hearing must be de novo. Accordingly, it is not required on this appeal to establish some error by the Master in coming to his decision; Form 77A, which requires grounds of appeal to be specified, is not appropriate to this type of appeal, which involves an exercise of the original jurisdiction of this Court. A more appropriate pro forma is Form 127 in Volume 5 of Atkin's Court Forms (2nd ed., 1984 issue). As Glass J.A. said, "all the issues must be re-tried", and "the party succeeding below enjoys no advantage." The appeal is a complete rehearing: the party who was the applicant before the Master begins; the appeal is determined on the evidence placed before the Judge and is unfettered by the Master's decision, though such weight may be given to his decision as appears proper. The relevant facts are to be determined as at the date the appeal is heard; as the Full Court put it in Southern Motors (supra) at p 191:- " - - the authorities show that on appeal the court or judge is not confined to a consideration of the circumstances existing at the time of the order under appeal and should have regard to whether in the events which have happened injustice will result if that order is allowed to stand." See also the discussion of hearings de novo by Muirhead A.J. in Meyering v Northern Territory of Australia [1987] NTSC 22; (1987) 47 NTR 21 at pp 25-27. 7. Since writing the foregoing, I note the decision in Burns Philp Trustee Co. Ltd v Saret (unreported, Martin J, 5 May 1988) to which I had not been referred. The course adopted in that case appears to accord with the foregoing; I note incidentally that Martin J dealt with the question of the costs both on the appeal and below.

Southwell v Specialised Engineering Services [1990] NTSC 27; 70 NTR 6; 101 FLR 175

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Southwell v Specialised Engineering Services [1990] NTSC 27; 70 NTR 6; 101 FLR 175 (4 September 1990)

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