14 December 2007
John TOMKO v John PALASTY (NO. 2)
Judgment
1 HODGSON JA: I agree with the orders proposed by Basten JA, and subject to what I say below, I agree substantially with his reasons.
2 I agree that it is only a respondent to an appeal who can bring a cross-appeal; and that once an appeal has been disposed of, there is no longer a respondent to the appeal. Accordingly, I agree that what Mr. Palasty now needs is an extension of time to bring an appeal.
3 In my opinion, the basis on which a registrar's decision may be reviewed is still relevant. I do not think Mr. Palasty can now be in any better position than he would have been in if he had sought the relief he needed before the Registrar, which relief in any event differs more in form than in substance from the relief which he sought before the Registrar.
4 I agree that Strata Consolidated (Australia) Pty. Limited v. Bradshaw [2000] NSWCA 225, to the extent that it decides that s.46(4) of the Supreme Court Act 1970 applies in the case of a registrar exercising the powers of a judge of appeal, should not be followed. That was an ex tempore decision, in which there was no consideration of alternatives or of contrary argument; and in my opinion, it is open to a subsequent bench of three judges, in a reserved judgment and upon consideration of alternatives and contrary arguments, to express firm disagreement. In my opinion, the circumstance that a registrar is exercising the powers of a judge of appeal does not make him or her a judge of appeal within the meaning of s.46(4). He or she remains a registrar, whose decision is subject to review under s.121(1) of the Supreme Court Act and/or r.49.19 of the Uniform Civil Procedure Rules.
5 I agree that the view expressed by Basten JA in Pioneer Park Pty. Limited (In Liquidation) v. Australia & New Zealand Banking Group Limited [2007] NSWCA 344, on the basis of limited argument, that the review of a registrar's decision with respect to an order for security for costs is constrained by the principles stated in House v. The King (1936) 55 CLR 499, is not strictly correct.
6 I agree that a review of a decision of a registrar is not an appeal, subject to s.75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion.
7 In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so.
8 In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v. The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.
9 In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v. The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.
10 In my opinion, this approach is consistent with the position that such reviews are not appeals and involve the exercise of discretion by the reviewing body; and with the policy considerations referred to by Jordan CJ in In Re the Will of Gilbert (1946) 46 SR(NSW) 318 at 323. It is also consistent with the general principles concerning interlocutory applications: they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence.
11 I am inclined to think the same approach applies to the review of a decision of a single judge of appeal under s.46(4) of the Supreme Court Act.
12 I agree with Basten JA that the circumstances of delay and the deficiencies in the explanations offered are very powerful considerations against Mr. Palasty.
13 In my opinion, it is particularly significant that the Court hearing Mr. Tomko's appeal was not informed of any proposal for an appeal or cross-appeal by Mr. Palasty. Such an appeal or cross-appeal, if it had any merit, would have raised possible faults in the judgment below which were not canvassed by Mr. Tomko's appeal; and may have put the overall soundness of the judgment in quite a different light. Although the issues in Mr. Tomko's appeal were different from those in Mr. Palasty's appeal or cross-appeal, they relate to just one judgment concerning one set of circumstances with the same group of participants. In those circumstances, in my opinion it was quite wrong to seek dismissal of an appeal, without drawing the Court's attention to the fact that there were aspects of the judgment that the respondent intended to attack as being unsound.
14 In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable.
15 In the present case, Mr. Palasty may have had a point which could be regarded as being more than just fairly arguable, arising from the way the case was pleaded and the way the primary judge addressed the question of whether Mr. Palasty had shown that he had reasonable grounds for making a representation as to the future. However, the primary judge in her judgment referred to a statement of issues which raised the question, and we have been provided with no material about that statement of issues on which we could form any view as to whether or not it was provided in circumstances which were adequate to fairly put the matter before the Court. We have also not been provided with any material that would enable us to form even a prima facie view as to whether the judge's approach to the question of evidence of reasonable grounds was erroneous, in the light of the way the case was conducted before her. In those circumstances, it is not possible for this Court to come to any view that Mr. Palasty has any more than a fairly arguable case.
16 In all these circumstances, a case is not made out for extending the time for the bringing of an appeal by Mr. Palasty.
17 IPP JA: Subject to the additional remarks of Hodgson JA (with which I agree), I agree with Basten JA.
18 BASTEN JA: On 15 December 2006 Gibb DCJ gave judgment in favour of Mr Tomko in proceedings brought by him against Mr Palasty in the District Court. In those proceedings, Mr Tomko had sought to recover two loans said to have been made to Mr Palasty. In the alternative to the claim in contract in relation to the second loan, Mr Tomko alleged an entitlement to damages in the amount of the loan, based on a misleading or deceptive representation made to him by Mr Palasty shortly before the second loan was advanced, to the effect that he, Mr Palasty, would organise for a mortgage to be given by the company which he controlled, which was purchasing land for development.
19 Mr Tomko appealed on the basis that he should have recovered the amount of the first loan, in addition to the amount which he recovered with respect to the second loan. Mr Palasty did not appeal.
20 Mr Tomko had argued in the District Court that he was entitled to recover the amount of each loan from Mr Palasty, on the basis that it had been made to Mr Palasty personally. The trial judge dismissed these claims, holding that both loans were made to a company controlled by Mr Palasty, and not to Mr Palasty. However, Mr Tomko succeeded in his claim with respect to misleading or deceptive conduct in relation to the second loan. He obtained a judgment against Mr Palasty in the amount of $480,852. Mr Tomko appealed against so much of the judgment as denied his claim in relation to the first loan. That appeal was heard by this Court on 17 September 2007. Judgment was delivered on 27 September 2007 dismissing the appeal with costs: see Tomko v Palasty [2007] NSWCA 258. Unbeknownst to the Court as then constituted, Mr Palasty had, some months prior to the hearing of Mr Tomko's appeal, indicated a wish to cross-appeal in relation to the judgment against him in the District Court. That fact was not revealed to the Court as constituted to hear Mr Tomko's appeal: see [2007] NSWCA 258 at [6]. However, as now appears, Mr Palasty had taken a number of steps, the details of which will be noted below, to obtain an extension of time within which to file a cross-appeal. A notice of motion seeking an extension of time in that regard was heard by the Registrar on 3 September 2007, 14 days before Mr Tomko's appeal was scheduled for hearing. The Registrar dismissed the application.
21 No step was taken to review the decision of the Registrar until 25 September 2007, eight days after the hearing of Mr Tomko's appeal. Two days later, on 27 September 2007 judgment was handed down dismissing Mr Tomko's appeal. The present proceeding involves an application to review the decision of the Registrar not to extend time for filing a "cross-appeal".
Preliminary issue
22 At a directions hearing on 23 November 2007, attended by counsel for both parties, the Court noted that the utility of the present application was open to doubt. There was no appeal on foot and the cross-appeal had not yet been commenced. Mr Palasty was invited to consider whether his application was in truth an application for an extension of time within which to appeal. The Court suggested that he might wish to consider his position in that respect so as to avoid yet further delay in the resolution of the outstanding issue. Further, the appeal having been dismissed, he was invited to consider whether the present application might be treated as an abuse of process, in a sense analogous to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, Mr Palasty having allowed Mr Tomko's appeal to proceed to final judgment without the determination of the issues he sought to raise in relation to the same judgment of the District Court.
23 On 30 November 2007 a further written submission was filed on behalf of Mr Palasty, addressing the issues raised at the directions hearing and, recognising the possibility that the motion seeking review of the Registrar's decision, if brought in reliance on s 46(4) of the Supreme Court Act 1970 (NSW), was out of time, seeking an extension of time in which to seek review. No application was made to seek an extension of time within which to appeal.
24 Mr Blake SC, for Mr Palasty, contended that it was still open to Mr Palasty to cross-appeal for three reasons, although it is not entirely clear whether they were cumulative or independent of each other. The first asserted that, because an extension of time had been sought before Mr Tomko's appeal was dismissed, there remained "a judicial function to perform". Secondly, it was contended that, because the rules imposed no limit on the time within which this Court could extend time to cross-appeal, there was no limit and the fact that the primary appeal had been dismissed should not be treated as an implied limitation on the power. Thirdly, perhaps supportively of the first reason, or in recognition of the possibility that it might be necessary to reopen the Court's appeal judgment, it was noted that the earlier judgment had not been entered.
25 The provisions relating to cross-appeals are contained in Supreme Court Rules 1970 (NSW), Part 51, r 18 and read as follows:
"18 (1) Where a respondent to an appeal from any decision wishes to cross-appeal from the whole or any part of the decision and is entitled to do so as of right, he or she shall file and serve on each necessary party a notice of cross-appeal.
(2) A notice of cross-appeal must be filed and served by a respondent within the earlier of:
(a) 14 days after service on the respondent of a notice of appeal with or without appointment;
(b) 14 days after leave to cross-appeal is given; or
(c) such extended or abridged time as the Court of Appeal may fix.
(3) Subject to subrules (1), (2), (4) and (5), the provisions of these rules relating to a notice of appeal apply to a notice of cross-appeal.
(4) Rules 5 and 6(2)-(4) do not apply to a cross-appeal.
(5) Times in rules 42(4) and (5) and rule 47(1) shall run from the date of filing of the notice of appeal with appointment rather than the date of filing of the notice of cross-appeal with appointment."
26 There is a question as to the date by which the notice of cross-appeal should have been filed and served. Rule 18(2) identifies at least four possible dates, being 14 days after service of a notice of appeal without appointment; 14 days from service of a notice of appeal with appointment; 14 days after a grant of leave to cross-appeal, or by the date fixed by the Court. Reference in sub-r (2) to "the earlier of" those dates is inapt; if it had referred to the "earliest" then the notice of cross-appeal was required by 23 January 2007. Because time was not sought to be abridged, nor was leave required, the only other relevant date was the date on which the notice of appeal with appointment was filed and served, 14 days from which date would have been 19 April 2007.
27 Apart from the question of time, there is a separate issue as to whether a notice of cross-appeal without appointment could properly be filed pursuant to r 18. Because the provisions of the rules relating to notices of appeal apply to notices of cross-appeal (sub-r (3)) r 6(1), providing for a notice of appeal with or without appointment, is applicable. For reasons which will be noted below, it is highly implausible that the rules contemplated that a notice of cross-appeal without appointment (allowing a further three months within which to file a notice of cross-appeal with appointment) was contemplated as a process available after a notice of appeal with appointment had been filed. The better view is that Mr Palasty was required to file a notice of cross-appeal without appointment within 14 days after service of the notice of appeal without appointment and, if he did not wish to avail himself of that liberty, then he was required to file within the same time a notice of cross-appeal with appointment. He did neither.
28 Part 51, r 5 provides that the Court may extend time for an appeal "at any time": r 5(4). Sub-rules 6(2)-(4) deal with the situation where a notice of appeal without appointment has been filed and served, allowing a three month period, which cannot be extended. An appeal which is automatically treated as discontinued on expiration of the three month period can only be reinstituted by seeking an extension of time under r 5.
29 The requirement for an appellant to file a notice of appeal with appointment within three months after filing one without appointment is contained in r 6(2). The discontinuance which follows a failure to comply with r 6(2) is found in r 6(4). Those provisions do not apply in relation to a cross-appeal: r 18(4). Whether that means that there is no provision for a cross-appeal without appointment or whether there is simply a lacuna in relation to what happens when a cross-appeal without appointment is not followed by a cross-appeal with appointment need not be resolved. However, it is clear from the provisions relating to call-over times that a cross-appeal without appointment cannot be filed after a notice of appeal with appointment: see r 18(5).
30 It is also clear from the language used consistently in Part 51 that the moving party on an appeal is an 'appellant' and the other party is the 'respondent'. Only a "respondent" can commence a cross-appeal: r 18(1). No person is aptly so described unless there is an appeal on foot. Once an appeal is disposed of by a final judgment of the Court, there is no longer an appeal on foot for the purposes of the rules relating to cross-appeals.
31 Although questions of costs may be dealt with after judgment has been delivered, judgments may in certain circumstances be set aside (see Uniform Civil Procedure Rules, 36.15 and 36.16) and applications for particular orders setting aside a judgment or seeking variation of a costs order may be made by a motion entitled in the appeal, it does not follow that the appeal proceedings are on foot for other purposes. Nor does the fact that the respondent had filed an application for extension of time before judgment was delivered allow a different conclusion. There may well be steps taken in a proceeding which have not been followed to fruition, such as the issue of a subpoena not called on. Unless the judgment is reopened, those steps should be taken as having lapsed, because they no longer have utility.
32 In the present case, there is no longer any appeal on foot and there is no application to reopen the judgment in Mr Tomko's appeal. For that reason the present motion should be dismissed. However, and despite not having availed himself of the opportunity to seek such relief in the alternative before the hearing of the present motion, Mr Palasty did seek, as a fall-back position, leave to apply for an extension of time within which to file an appeal. Despite failure to comply with the formalities, that application should be treated as having been made and any formalities waived.
Nature of challenge to decision of Registrar
33 If the conclusion reached above is correct, there is no occasion to consider the power of review of the decision of the Registrar. However, the matter was fully argued and in case the conclusion reached above is thought to be wrong, it is appropriate to address the question.
34 The real issue in this regard is the scope of the available challenge to a decision of the Registrar on an interlocutory application or, from the point of view of the Court, the proper approach to be adopted by the Court in considering a challenge. The starting point in seeking to address that question is the source of the Court's power.
35 Part 8, Division 2 of the Supreme Court Act provides for the appointment of Registrars, including the Registrar of the Court of Appeal: s 119(1). Section 121 makes provision in relation to powers and other matters, in the following terms:
"121 (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)."
36 Under the Supreme Court Rules 1970 certain powers are conferred on the Registrar, subject to exceptions not presently relevant, by adoption of the powers conferred on a judge of appeal by sub-ss 46(1) and (2) of the Supreme Court Act. Those powers include orders "concerning the institution of an appeal" or any other order "in any appeal", not involving the determination or decision of the appeal: s 46(2). It was not disputed that the powers thus conferred on the Registrar included the power to grant or refuse an extension of time within which to file a cross-appeal.
37 There may be an issue as to whether ss 121(3) and 46 permit a judge of appeal to deal with an application to set aside or vary a judgment given by the Registrar of the Court of Appeal. Part 61, r 4 may have that effect. Mr Palasty contended that it did, because, pursuant to the transitional provision in Schedule 6, cl 9 of the Civil Procedure Act 2005 (NSW) the reference in Part 61, r 4 to powers of the Court "under this Part" included the corresponding provisions in the Uniform Civil Procedure Rules 2005 ("the UCPR"), the otherwise relevant provisions of Part 61 having been repealed. At least since the amendment to UCPR r 49.19 on 7 September 2007, it is apparent that the power given by that rule is a corresponding provision to the repealed Part 61, r 3. In any event, that question is of no present relevance, given the constitution of the Court. However, the terms of r 49.19 are significant and should be noted:
"49.19 If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise as the court thinks fit."
38 The alternative source of power was that said to arise under s 46(4) of the Supreme Court Act which provides:
"46 …
(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."
39 Although s 46(4) makes no reference to a judgment or order of a registrar, there is authority for the proposition that it extends to such a decision because the powers of the registrar are identified by reference to the powers conferred on a judge of appeal sitting alone. In Ritchie's Uniform Civil Procedure NSW, the note at [SCA s 46.15] indicates that the judgment of Sheller JA in Emmett v Hornsby Shire Council [2002] NSWCA 75 is authority for the proposition that the power to review a decision of a registrar arises under s 46(4). That is not so. His Honour relied upon Part 61, r 4 as the source of power to review the decision of the Registrar dismissing an appeal for want of prosecution.
40 Authority for the proposition that s 46(4) permits review of the decision of a registrar, because he was exercising powers identified under Part 51, r 58 as the powers of a judge of appeal, may be found in Strata Consolidated (Australia) Pty Ltd v Bradshaw [2000] NSWCA 225 (Heydon JA, Sheller and Beazley JJA agreeing) at [3]. However, the logic of that position is not self-evident: s 46(4) does not confer on the Court a power to discharge or vary a judgment or order made in relation to the subject matter of sub-ss (1) and (2), but rather orders made by a judge of appeal. The fact that the powers of a registrar are identified by reference to the subject matter of s 46(1) and (2), does not make a decision by a registrar in respect of such a matter a decision of a judge of appeal. I noted doubts as to the logic of Strata Consolidated in that respect in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [7] (Hoeben J agreeing, Ipp JA expressing no opinion). In the present case Mr Palasty invited this Court to conclude that Strata Consolidated was wrongly decided in that respect and that the relevant power to review a decision of the Registrar does not arise under s 46(4). In my view, that submission should be accepted.
41 The present relevance of the source of power derives from the consequences said to flow from the source. In Wentworth v Wentworth (1994) 35 NSWLR 726 this Court considered an application to discharge or vary an interlocutory order restraining certain dealings in shares pending determination of an appeal. The reasons of the Court were variously expressed by Mahoney, Handley and Powell JJA, but broadly speaking adopted the principles of constraint applicable in relation to discretionary interlocutory decisions, in accordance with House v The King (1936) 55 CLR 499; In Re the Will of FB Gilbert (dec'd) (1946) 46 SR (NSW) 318 and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170: see, eg, Handley JA at 733. Because that approach had been adopted in relation to review of a decision of a judge of appeal sitting alone, pursuant to s 46(4), the Court held in Strata Consolidated that the same principles must apply in relation to review of a decision of a registrar, because that review arose under s 46(4): at [3], per Heydon JA.
42 It does not follow that, because the right of review is properly found in s 121(3) and r 49.19, rather than s 46(4), that the principles governing the review are not those stated in Strata Consolidated. Thus, although the point was not argued, this Court suggested in Pioneer Park Pty Ltd (In liq) v Australia and New Zealand Banking Group Limited [2007] NSWCA 344 at [28] that the differences in language between the three provisions did not suggest any differences in the scope of review. The relevance of those principles of constraint are, however, expressly called into question by Mr Palasty in the present matter and should accordingly be addressed. The first step in the argument is to note that none of the relevant provisions uses the term "appeal". In particular, r 49.19 provides that the Court may "review" the order of the Registrar. As originally enacted, UCPR Part 49 (then Part 45) included procedures for applications for review in Division 5 which tended to equate a review with an appeal and, indeed, used the term "appeal": see, eg, r 45.20(2), as enacted in Schedule 7 of the Civil Procedure Act. 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. Consistently, Part 51 of the Supreme Court Rules, which uses the term "appeal" to refer to an appeal from a decision in proceedings in the Court expressly excludes "an application for the variation or discharge of an order of a judge of appeal or of the Registrar": r 2(4), although that language picks up the language of s 46(4) and Part 51, r 56.
43 The term "review" may be said to have "a quite amorphous meaning" as noted by Burchett J in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 63-64. The meaning will often depend upon the statutory context. In Re Greenhill; Ex parte Pook (1988) 83 ALR 295, Gummow J thought that the term had been deliberately used in the Bankruptcy Act 1966 (Cth) rather than the term appeal "with an eye to the complex history that has attended the question of the exercise of the judicial power of the Commonwealth other than by judges": at 296(50) referring to Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 at 63-64, to which may now be added reference to Harris v Calladine (1991) 172 CLR 84. In federal jurisdiction, a review is taken to mean a re-examination of a matter afresh, not limited to reconsideration of the material before the primary decision-maker: see Re Brindle; Ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506 at 509 (Hill J). It may be found to have a similar meaning in an administrative context: see, eg, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [199] (Hayne J).
44 In Comalco Aluminium Ltd v Ohtsu Tyre & Rubber Co (Aust) Pty Ltd (1983) 8 ACLR 330, McLelland J held that a review of a registrar's decision to dismiss a summons for the winding up of a company, could be by way of a hearing de novo, on evidence a substantial part of which had not been before the registrar. McLelland J referred to his earlier decision of 12 September 1983 (unreported) in which he considered the principles on which an application to review the decision of a registrar should be approached. However, that decision was largely limited to the question whether the review was a form of appeal subject to s 75A of the Supreme Court Act, or whether it should be treated as a de novo hearing, not subject to such constraints. His Honour considered that a review under Part 61, r 3 was not an "appeal" and therefore approached the matter in the way described in the reported judgment.
45 A similar approach has been generally adopted in the Divisions in this Court: see particularly the judgment of Hall J in Lawteal Pty Ltd v Ofo [2006] NSWSC 365 at [57]-[60]. The views expressed in a number of the unreported decisions referred to by his Honour are succinctly summarised by Santow JA in Wentworth v Graham (2002) 55 NSWLR 638 at [9] stating, after referring to his own earlier decision in Westpac Banking Corporation v Abemond Pty Ltd (NSWSC, 3 November 1994, unrep):
"… [T]he consideration that the registrar's decision involves a matter of practice and procedure remains a relevant consideration in the exercise of the power of review. Accordingly, it is proper for the court to exhibit a natural inhibition against the unrestrained substitution of the reviewing court's views in a matter of practice and procedure for those of the original tribunal."
46 That a "review" of the decision of the registrar pursuant to r 49.19 is not an appeal means that principles of restraint expressly adopted in relation to appeals do not, in terms, apply: c.f. Wentworth v Wentworth at [41] above. Further, the requirement to demonstrate error, which is an essential part of the appellate process, is also not applicable: see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14] and CDJ v VAJ (1998) 197 CLR 172 at [111]. To introduce those constraints as applicable in the case of a procedure identified expressly as a "review" would be to impose constraints inconsistent with the language of the rule.
47 Nevertheless, the policy identified by Jordan CJ in In Re the Will of FB Gilbert (dec'd) (1946) 46 SR (NSW) 318 at 323 has force. In referring to appeals in respect of points of practice or procedure, his Honour stated:
"… [I]f a tight reign were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."
48 That is no doubt a factor which may be taken into account on a review, but it must bear a good deal less weight than on an appeal if the process of review is not to be subverted. Even in relation to an appeal, as Jordan CJ noted in Gilbert, a distinction should be drawn between "an exercise of so-called discretion which is determinative of legal rights" and a simple matter of practice and procedure, a distinction approved in Ellis v Leeder (1951) 82 CLR 645 at 653 (Dixon, Williams and Kitto JJ).
49 A further factor which might influence the way in which a review was permitted to be conducted in this Court is the fact that, sitting as an appellate court, it is ill equipped to hear oral evidence, especially if it is likely to be extensive. However, that concern does not arise in the present case because, although further evidence was tendered, it was in documentary form and was received largely without objection. Consistently with a process of review, it was also appropriate for the parties to re-tender the material which had been before the Registrar. If there are circumstances in which the Court might seek to limit the tender of further material, they did not arise in the present case and need not be considered further.
50 It follows, in my view, that Mr Palasty was correct in contending that the matter must proceed by way of review; that s 75A of the Supreme Court Act is inapplicable; that he was under no obligation to demonstrate error on the part of the Registrar, and that the Court must exercise its own discretion on the material before it.
51 To the extent that that approach is inconsistent with earlier authority, and particularly Strata Consolidated and Wentworth v Wentworth, that authority should not be followed. Because the approach adopted in those cases was explicitly based upon a jurisdiction invoked under s 46(4), rather than Part 61, r 3 or its corresponding provision in the UCPR, r 49.19, it provides only indirect authority with respect to the scope of the rule. Although the approach now proposed is also inconsistent with the approach adopted in Pioneer Park, the challenge to Strata Consolidated mounted by the respondent Bank in that case relied only upon the proposition that it was inconsistent with the investiture of federal jurisdiction: at [40].
52 It follows that the proper approach to an application in relation to a decision of the Registrar is as follows: