Tisdale v Ballanday

PARTIES : Tisdale & Ors v Ballanday Pty Limited & Ors

SOLICITORS : Ms Julie A Orsini (plaintiff) Mr Valentino Musico (amicus curiae)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3094/ 04 TERRANCE ROLAND TISDALE & 3 ORS v BALLANDAY PTY LTD & 2 ORS

1 HIS HONOUR: When judgment was delivered on 18 November 2008, I reserved the question of whether a certificate under s 6(1) of the Suitors' Fund Act 1951 should be issued in favour of the plaintiffs. I will deal with this question now. Ms Orsini made submissions on behalf of the plaintiffs and Mr Musico appeared as amicus curiae and made submissions on behalf of the New South Wales Attorney General's Department. 2 Section 6 of the Suitors' Fund Act provides: "6 Costs of certain appeals (1) If an appeal against the decision of a court: (a) to the Supreme Court on a question of law or fact, or (b) to the High Court from a decision of the Supreme Court on a question of law, succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal. …

(7) An indemnity certificate shall not be granted in favour of: (a) the Crown, (b) a corporation that has a paid-up share capital of two hundred thousand dollars or more, or (c) a corporation that does not have such a paid-up share capital but that, within the meaning of section 50 of the Corporations Act 2001 of the Commonwealth, is related to a body corporate that has such a paid-up share capital, unless the appeal to which the certificate relates was instituted before the commencement of the Legal Assistance and Suitors' Fund (Amendment) Act 1970 ."

3 The application of s 6 of the Suitors Fund Act was recently discussed by Justice Hall in Burringbar Real Estate Centre Pty Limited v Anthony John Ryder and Ors [2008] NSWSC 891at [31]: "[31] The exercise of the power under s 6 is dependent upon whether the unsuccessful defendants can establish three necessary requirements, namely, that there has been an appeal to this Court; that it is one against the decision of a court; and that it involves an appeal on a question of law or fact: see s 6(1), Suitors' Fund Act; see also Builders Licensing Board v Pride Constructions Pty Ltd [1979] 1 NSWLR 607 at 616 (although, at that time of that case, the discretion was limited to appeals involving questions of law). The word "appeal" for the purposes of this Act has been given an expanded meaning, defined to include "any motion for a new trial and any proceeding in the nature of an appeal": s 2, Suitors' Fund Act. "

4 The first matter to which attention must be drawn is whether the review of the Registrar's decision constitutes an appeal for the purpose of section 6. Appeal is defined in section 2(1) of the Suitors' Fund Act in these terms: "'Appeal' includes any motion for a new trial and any proceeding in the nature of an appeal."

5 This definition was discussed in Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors (No 2) [2004] NSWCA 337 at [9]: "[9] By the definition in s 2(1) "appeal" includes "any proceeding in the nature of an appeal". Original proceedings invoking the supervisory jurisdiction of the Supreme Court by way of orders in the nature of prohibition and certiorari have been held to be appeals for the purposes of the Act, see ex parte Parsons (1952) 69 WN (NSW) 380, Production Spray Painting & Panelbeating Pty Ltd v Newnham (1991) 27 NSWLR 644 and re Oscar [2002] NSWSC 887."

6 The Court of Appeal discussed the terms appeal and review in Siddik v Workcover Authority of NSW [2008] NSWCA 116. McColl JA, with whom Mason P agreed, reviewed the authorities on the nature of a review said at paragraphs [60] to [62] and paragraph [68]: [60] An appeal is the right to enter a superior court, and invoke its aid and interposition to redress the error of the court below: Attorney-General v Sillem (1864) 10 HL Cas 704 at 724 ; 11 ER 1200 at 1209 per Lord Westbury LC; CDJ v VAJ (No 1) [1998] HCA 67 ; (1998) 197 CLR 172 (at [111]) per McHugh, Gummow and Callinan JJ. It is the formal proceeding by which an unsuccessful party seeks to have the formal order of a court set aside or varied in his favour by an appellate court: The Commonwealth of Australia v Bank of New South Wales [1950] AC 235 (at 294); Vegan (at [16]). [61] These apparently simple expositions of the concept of an appeal are somewhat confounded by the multiple senses in which the concept of an appeal is understood. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 (at [11]), Gleeson CJ, Gaudron and Hayne JJ commented that "[t]here is … no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another". Kirby J (at [68]) quoted with approval Glass JA's statement in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 (at 297) that the word "appeal" encompasses "different litigious processes which have few unifying characteristics". [62] An appeal is always a creature of statute: Dwyer v Calco Timbers Pty Ltd [2008] HCA 13 ; (2008) 244 ALR 257 (at [2]) per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. Mason J (with whose judgment Barwick CJ and Stephen J agreed) outlined four categories of appeal in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62 ; (1976) 135 CLR 616 (at 619-622) but, as was pointed out in Dwyer (at [2]): … these categories cannot represent a closed class and particular legislative measures … may use the term 'appeal' to identify a wholly novel procedure or one which is a variant of one or more of those just described. It was in that vein that McHugh J pointed out in Eastman v The Queen : Which of these meanings the term 'appeal' has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be. In short, it is the proper construction of the terms of any particular statutory grant of a right of appeal which determines its nature. …

[68] The concept of a review per se is attended by no greater clarity than that of an appeal. In Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10 ; (1995) 183 CLR 245 at 261) Mason CJ, Brennan and Toohey JJ observed that while "the expression 'review' is commonly used in the context of judicial control of administrative action and in the context of comprehensive administrative review by an administrative tribunal of administrative decisions … 'review' has no settled pre-determined meaning [and] … takes its meaning from the context in which it appears". In like vein, in Tomko v Palasty (No 2) [2007] NSWCA 369 (at [43]), Basten JA (Hodgson and Ipp JJA agreeing) observed that the "term [review] … may be said to have 'a quite amorphous meaning' [which] will often depend upon the statutory context".

7 Associate Justice Malpass looked at the statutory context of "review" in Thomas v State of New South Wales [2005] NSWSC 1061; (2005) 66 NSWLR 44: "[12] The procedure for applications for review of decisions of a Registrar (other than a Judicial Registrar) may be found in r 45. These provisions are significantly different to their predecessors (see Pt 61, r 3 of the S upreme Court Rules 1970). Whilst the rule still speaks of a "review" of a decision of a Registrar, it also uses the term "appeal". The rule introduces changes to the procedure that had existed under the former regime. The rules speak of the institution of an appeal. The notice of motion must set out the grounds relied on in support of the application. Provision is made for the filing of a notice of contention. There are new provisions concerning evidence (r 45.23). It is expressly provided that an application does not operate as a stay of the decision of the Registrar. [13] Whilst the use of the language of both "review" and "appeal" may be thought to be confusing, presumably the intention is for a review of a decision of a Registrar to take on at least certain of the trappings of an appeal. This would seem to be consistent with the changes that have taken place over the years. [14] Many of the earlier decisions concerning such a review were made when the functions of a Registrar were at least largely administrative. Since that time, the jurisdiction that may be entertained by a Registrar has significantly increased. These days, a Registrar may entertain much of the jurisdiction that was exercised by the former Masters. An exercise of the referral power can confer the jurisdiction entertained by an Associate Justice. " 8 As originally enacted, Part 49 (then Part 45) of the Uniform Civil Procedure Rules included procedures for applications for review of registrars decisions which tended to equate a review with an appeal and rule 45.20(2) used the term "appeal" as referred to by Malpass As J above. These references were removed by the Uniform Civil Procedure Rules (Amendment No 15) 2007, published on 7 September 2007: Government Gazette No 116, p 6934.

9 The Court of Appeal in Tomko v Palasty (No 2) [2007] NSWCA 369 found that a review of a decision of a registrar is not an appeal subject to s 75A of the Supreme Court Act. In coming to this finding Basten JA (Hodgson and Ipp JJA agreeing) stated at [52]: "[52] It follows that the proper approach to an application in relation to a decision of the Registrar is as follows: (1) the application should be treated as a "review", pursuant to s 121(3) of the Supreme Court Act and UCPR r 49.19; (2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker; (3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v R , do not in terms apply to a review; (4) nevertheless, similar policy considerations may arise in relation to a review, including: (a) a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement; (b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and (c) a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review." 10 There are two other decisions of interest. The first is Onions v Government Insurance Office of New South Wales (1956) 73 WN (NSW) 279. That case concerned a reference from the Prothonotary to a Judge. Maguire J described the reference and his decision in these terms: "The applicant in the summons, having been deprived by the judgment I have delivered of the order made in his favour by the Prothonotary, now asks me to grant him a certificate of indemnity under the Suitors' Fund Act 1951, s. 6. This was a reference from the Prothonotary exercising a delegated jurisdiction of a judge in chambers to a judge himself sitting in Chambers. I think that such a reference is at least a proceeding in the nature of an appeal within the Suitors' Fund Act 1951, s. 2, and I am of opinion that the appeal has succeeded on a question of law, for it is a question of law whether a particular set of facts amount to sufficient cause within the meaning of the Motor Vehicles (Third Party Insurance) Act 1942-1951, s. 15 (2) (b) (ii). Furthermore, although the Suitors' Fund Act 1951, s. 6 speaks of an appeal against the decision of " any court ", and of the " court " determining the appeal, it is clear to me that the word " court " does not necessarily in all cases suggest a distinction between a court and a judge sitting in chambers. I am of opinion that the present proceedings fall within the Suitors' Fund Act 1951, s. 6 and I grant to the applicant in the summons an indemnity certificate under that section." 11 It is to be noted that the position of the Prothonotary is similar to that of a Registrar. 12 There is also a decision of X v Y [2000] NSWSC 952 where Hamilton J dealt with an application for a certificate in respect of an appeal from a Master to a Judge. He found the criteria was satisfied.

13 As noted in Burringbar Real Estate Centre Pty Limited v Anthony John Ryder and Ors "the word "appeal" for the purposes of this Act has been given an expanded meaning, defined to include "any motion for a new trial and any proceeding in the nature of an appeal": s 2, Suitors' Fund Act." While an "appeal" is not a "review" and a different approach is to be taken, it is my view that a review is in the nature of an appeal for the purpose of s 6 of the Suitors' Fund Act. This accords with the beneficial purpose of the legislation. 14 In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 Kirby P emphasized the beneficial construction that should be given to this legislation. His Honour stated at 494: "It is appropriate to state at the outset the principles which we accept as guiding our approach to the interpretation of the section, subject to its language. Relevantly, these are three: (1) The section appears in a statute the purpose of which is the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the court appealed from: see Moffitt J, as he then was, in Acquilina v Dairy Farmers Co-operative Milk Co Ltd (1965) 82 WN (Pt 1) (NSW) 531 at 534. The history of the legislation, and indeed its terms, make it plain that the purpose which must be kept in mind in its interpretation and application is the relief of litigants against the costs inevitably incurred when appeal review discloses an error of law requiring correction. The object is to ensure that litigants do not, as in the past, bear the costs thereby occasioned but that these costs are spread, by way of the fund, to mitigate the hardship to litigants that would otherwise flow. The history and purposes of such legislation, now common throughout Australia, can be found discussed in a number of reports: see eg Victoria, Chief Justice's Law Reform Committee, Suitors' Fund Legislation 1962; Queensland Law Reform Commission, Report on a Bill to establish an Appeal Costs Fund , 1972 (QLRC 12); South Australia, Law Reform Committee, The Enactment of an Appeal Costs Fund Act , 1974 (SALC 31); Western Australia, Law Reform Commission, The Suitors' Fund Act Part A: Civil Proceedings , 1976. (2) Although the Suitors' Fund Act preceded the establishment of the Court of Appeal, the Court of Appeal being established by the Supreme Court Act 1970, s 38, with a substantial jurisdiction in respect of appeals on questions of law, the application of the beneficial provisions of the Suitors' Fund Act to appeals to the Court of Appeal should be presumed, unless clear language to the contrary appears in the statute. Only this approach will assure the operation of the Suitors' Fund Act in an area where that operation is most relevant. (3) Although it is necessary to protect the fund, the court has an ample discretion to do so by refusing certificates in proper cases (as was held in Acquilina ) and beneficial legislation of this kind should not be narrowly construed by imposing on its language meanings which would frustrate its plain purpose, where other meanings are equally available.

15 Accordingly I am satisfied that a "review" of a registrars decision is in the nature of an appeal for the purposes of section 6 of the Suitors Funds Act and the first requirement is established. 16 The next matter to determine is whether the decision of the Registrar under review is a "decision of a court". Registrars powers are described in section 121 of the Supreme Court Act 1970 which provides: "121 Powers (1) In this section officer means a registrar, taxing officer, or other officer of the Court. (2) An officer may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the officer. (3) A judgment given or an order made by an officer may be set aside or varied by the Court. (4) Subject to subsection (3), a judgment given or an order made or direction given by an officer shall have effect as a judgment or order or direction of the Court, whether or not the judgment, order or direction is within the powers mentioned in this section of the officer. (5) An officer shall constitute the Court for the purpose of the exercise of the powers mentioned in subsection (2)."

17 Section 13(1) (a) of the Civil Procedure Act 2005 provides that a senior judicial officer may by instrument in writing direct that any function of the court under this Act or the uniform rules may be exercised by such registrars or other officers of the court, and in such circumstances and subject to such conditions, as are specified in the instrument. By direction under s 13 of the Civil Procedure Act dated 4 October 2007, the Chief Justice of New South Wales directed that registrars may exercise various functions of the court that were listed and gazetted. These functions include the functions under parts 33 and 34 of the Uniform Civil Procedure Rules. 18 By virtue of s 121(5) of the Supreme Court Act and the functions of the court delegated to registrars under s 13 of the Civil Procedure Act it follows that the decision of the registrar that is under review is a decision of the court and the second requirement of s 6 of the Suitors Fund Act is satisfied. 19 Finally the "appeal" must involve an appeal on a question of law or fact. The matter before me was review of the registrar's decision in relation to claims of privilege of certain documents. The third requirement is met, the plaintiff should have a certificate under the Suitors Fund Act, if appropriate. It is to be noted that the certificate is only in respect of the appeal. 20 Accordingly, conditional upon the plaintiffs establishing any necessary entitlement under s 6(7) of the Suitors Fund Act, I grant an indemnity certificate under s 6 of the Act.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.