WESTMITE PTY LTD v THE LAW SOCIETY OF SA No. SCGRG-98-853 Judgment No. S75 [1999] SASC 75

"A claimant who is aggrieved by a determination of the Society under this section may appeal to the Supreme Court against the determination."

As a person aggrieved by the Law Society's determination to reject its claim, Westmite Pty Ltd has appealed to this court.

The Law Society has applied for a preliminary determination of the nature of the appeal. The determination of that question will have an important bearing upon the manner in which the appeal will be conducted. It will affect such matters as whether pleadings are required, whether either party may lead evidence, and whether the parties may obtain discovery of documents. It is plainly desirable that the question be determined at an early stage.

The word "appeal" is a word of flexible meaning. It is capable of describing at least three kinds of procedures and, although each is a review of a prior decision, each differs in the manner in which it is conducted. The nature of the three kinds of appeal was helpfully reviewed by Cox J in Wigg v Architects Board South Australia (1984) 36 SASR 111. I respectfully adopt His Honour's reasoning. It is also important to note His Honour's caveat (at p114) as to the possibility of a hybrid kind of appeal.

Which of these three kinds of appeal is designated in any statutory provision will depend upon the legislative intention as disclosed on examination of the legislation as a whole: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 621, Wigg v Architects Board of SA (supra) at 113 to 114, and re Coldham; ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 at 273 to 274. While the search must always be to glean the legislative intention, it is nevertheless well settled that, when the legislature gives a court the power to review or hear an appeal against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: ex parte Australian Sporting Club Ltd [1947] NSWStRp 11; (1947) 47 SR(NSW) 283 approved in Re Coldham; ex Parte Brideson (No 2) (supra) at 273.

There are several factors which point to the conclusion that the intention is that s63(4) provides an appeal de novo. First, the claimant against the Guarantee Fund has no right to be heard before the Law Society. The claimant's only right of audience is before the court on appeal. Next, there is no record of what takes place in the Law Society and there is no statutory obligation upon the Society to give reasons for its decision. I do not stay with the question whether the Society is obliged at common law to give reasons. All that is known is the Society's decision. Thirdly, s63(7) is expressed in terms which are wide enough to indicate that the evidence, the subject of that provision, may be adduced on an appeal. To summarise, an appeal to this court is the only opportunity for a claimant to be able to adduce evidence to be heard and to have his claim properly ventilated.

For these reasons, the right of the claimant to appeal to this court pursuant to s63(4) is an appeal de novo. I note that a similar right of appeal in New South Wales has been treated as an appeal de novo, although the matter was not argued and the Law Society conceded the point in van Houten v Law Society of New South Wales (unreported, 11 December 1991, Abadee J) and Harrison v Law Society of New South Wales (unreported, 1 September 1993, Smart J). Those decisions were noted without question but were not examined in Vassiliadis v Law Society of New South Wales (1997) 41 NSW LR 383 at 386 to 387.

The parties have already filed points of claim and points of defence. They are sufficient for elucidating the issues of fact and law. The appeal should hereafter proceed in a manner similar to the conduct of an action with the parties at liberty to seek discovery of documents, give notice to admit and the like.

There will be an order that this appeal proceed in a manner similar to that for the conduct of an action.