Board of Optical Registration v Grist
[1989] TASSC 75
•20 December 1989
Serial No 75/1989
List "A"
CITATION: Board of Optical Registration V Grist [1989] TASSC 75; (1989) Tas R 289; A75/1989
PARTIES: BOARD OF OPTICAL REGISTRATION
v
GRIST, Edwin John
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL Court)
JURISDICTION: APPELLATE
FILE NO/S: FCA 85/1989
DELIVERED ON: 20 December 1989
DELIVERED AT: Hobart
JUDGMENT OF: Neasey, Underwood and Wright JJ
Judgment Number: A75/1989
Number of paragraphs: 41
Serial No 75/1989
List "A"
File No FCA 85/1989
BOARD OF OPTICAL REGISTRATION v EDWIN JOHN GRIST
REASONS FOR JUDGMENT FULL COURT
NEASEY J
UNDERWOOD J
WRIGHT J
20 December 1989
Order of the Court
Appeal dismissed.
Serial No 75/1989
List "A"
File No FCA 85/1989
BOARD OF OPTICAL REGISTRATION v EDWIN JOHN GRIST
REASONS FOR JUDGMENT FULL COURT
NEASEY J
UNDERWOOD J
20 December 1989
This is an appeal under s26 of the Opticians Act 1913 ("the Act") against an order made by the appellant Board of Optical Registration. The Board directed its Registrar to issue witness summonses under the Act against four named persons. These summonses required them to attend and produce certain documents at an investigatory hearing which the Board proposed to hold into the question whether the respondent had conducted his optometry practice in breach of the Act in certain respects. There are seven grounds of appeal, all complaining of illegality and invalidity of the witness summonses for various reasons, commencing with the proposition that the Board had no power to issue them in the first place, since it had not so far commenced proceedings against the respondent for any breach of the Act.
When the matter came on for hearing before Crawford J, counsel for the Board argued two preliminary points; namely, whether the respondent Mr Grist, then appellant, qualified as "a person who is aggrieved" by any decision, order, or direction of the Board, within the meaning of s26(1) of the Act; and whether there had been any such decision, order or direction. The learned judge decided to resolve these two preliminary points before proceeding further with the appeal. In due course he gave reasons in writing wherein he held affirmatively on both questions. That decision is now on appeal before this court, on the grounds that his Honour erred in law.
There is first a threshold question for us to decide; namely whether the provisions of s26(2) of the Opticians Act preclude any appeal from the judge's order. Section 26 provides:–
"26–(1) Any person who is aggrieved by any decision, order, or direction of the Board may appeal by summons to a judge.
No such appeal shall be entertained unless it is made within two months next after the notification to him of the decision, order, or direction, nor unless ten days' notice in writing of such appeal, stating the nature and grounds thereof, is given to the party whose decision, order, or direction is appealed against.
(2) The judge may make such order as he thinks just (including any order as to costs), and such order shall be final and without appeal, and shall be observed by the Board and by every person concerned.
(3) The proceedings on any appeal under this section shall be as may be prescribed by Rules of Court."
There is a question whether this provision has the effect of making the judge as the appellate tribunal persona designata. A persona designata in a judicial or quasi–judicial context is ordinarily an individual appointed to carry out a given task, such as when a judge accepts appointment to act as an arbitrator or to determine a particular dispute – see Jowitt's Dictionary of English Law, 2nd edn., vol 2, p1354. However, the concept of all the judges of a particular court being appointed personae designatae for a given purpose under a statute is not uncommon. Difficult questions may arise when appellate jurisdiction is conferred upon all the judges of a court in circumstances indicating doubt whether each is intended to act in his capacity as a member of the court, and subject to the court's ordinary appellate control, or whether the appointee is intended to act in a personal and thus non–judicial capacity.
Section 26(1) provides that "any person who is aggrieved by any decision, order, or direction of the Board may appeal by summons to a judge". By s46 of the Acts Interpretation Act 1931, "judge" means a judge of the Supreme Court. When one considers the nature of the different kinds of decisions, orders and directions which the Board can make under the Act, the proper interpretation of those words is a difficult matter. The learned judge was conscious of that when he considered which orders and decisions might be open to appeal under the Act and which might not. It was not argued before him that the judge hearing the appeal is persona designata, and he did not consider that possibility. Nor was the question raised before us. We raised the issue ourselves, and there was some discussion, but neither counsel wanted to take it up. That does not absolve this Court from considering the matter. We gave counsel the opportunity of sending in any further written submissions if they wished.
We cannot see why the expression in s26(1), "any decision, order, or direction of the Board", should not be given its full weight. This would mean that any of a large number of such decisions, orders or directions, many of them of an administrative and some of a relatively trivial nature would be appealable. Section 16 of the Act gives the Board power to make regulations of a wide–ranging character concerning the practice of the profession of optometry – see Marks and Pinnington v The Board of Optical Registration, 5986, a decision by Wright J in this Court. Crawford J considered a number of such decisions, orders and directions in his reasons for judgment, in respect of whether they would be appealable or not. For example, his Honour thought it doubtful that a decision by the Board under s18(1)(e) "as to the proper title or titles to designate fitly the practice of optometry" could be the subject of appeal. Indeed that might seem unlikely, but we think the answer probably lies in the proposition that a person who proposes to appeal would have to come within the description, "a person who is aggrieved, etc.". However, we can see that an optometrist might feel genuinely aggrieved if he thought the Board had not decided upon proper titles to designate his profession fitly. Such considerations can easily be seen as reasons why the legislature should make the appellate judge persona designata, and his decisions not subject to further appeal.
Pursuant to the Opticians Act 1913, the Opticians Amendment Act 1980, and the Opticians Regulations 1983 made under the Act (Statutory Rules 1983, No. 203), "directions" of many kinds may be made by the Board, all or most of which would be of a solely administrative character. Again, some of them are mentioned by his Honour, such as the Board's direction to the Registrar to issue the summonses in question; and a direction as to what particulars the Register of Opticians shall contain. That all such directions should be appealable to a judge whose orders concerning them are to be final and without appeal is hardly indicative of the exercise of judicial power by the judge.
As originally enacted, the Opticians Act 1913, s26(3), gave the judges a power to make rules "to regulate the practice and procedure". It further provided that until such rules were made the Appeals Regulation Act as to appeals from justices applied, with such alterations as were necessary to appeals under the Opticians Act. The Appeals Regulation Act 1855, 19 Vic No 10 made provision (inter alia) for the making and contents of notices of appeal from orders by justices to "a court of General Sessions of the Peace."
The Supreme Court Civil Procedure Act 1932 came into force on 1 January 1934. The Rules of Court then formed a Schedule to the Act. Section 196 provided that the Rules shall regulate the practice and procedure of "the Court in the exercise of the jurisdiction of the Court which is subject to the Act." "Jurisdiction of the court" could only arise by virtue of the Opticians Act, s26(1). Order 74, r69 of the Rules of Court in force on 1 January 1934 made express provision that (inter alia) "every appeal from" any decision, ruling, order or direction [the then words of s26(1)] of the Board of Optical Registration under the Opticians Act shall be heard and determined by a judge in Chambers ...". The rule went on to empower the judge to adjourn the matter into the court and refer the appeal or any question arising to the Full Court for its determination.
The Statute Law Revision Act 1935 which came into force on 31 January 1936 effected valuable and sweeping law reform to "tidy up" the existing Statute Law in Tasmania. It amended s26 of the Opticians Act to its present form by (inter alia) repealing subs(3), and providing that the proceedings on appeal "shall be as may be provided by the Rules of Court". It is clear that Parliament then had in mind the provisions of O74, r64 which had come into operation just twelve months earlier.
If the right of appeal to a judge given by s26(1) was intended to give a right of appeal to a member of the Supreme Court in his judicial capacity, then by virtue of the Supreme Court Civil Procedure Act, ss6(1) and 196, the provision of the existing s26(3) by the 1935 Statute Law Revision Act was otiose. It may be noted that at the same time as O74, r64 first came into operation, the Education Act 1932, s41 gave a right of appeal to a judge but made no reference to procedure or rules. The Medical Act, which gave a right of appeal to the Supreme Court made no reference to procedure or rules. Of even greater interest is the Dentists Act 1919 which gave a right of appeal to a "judge of the Supreme Court" and expanded the scope of the appeal by the words "and such appeal may be brought upon the ground that the decision, order or direction of the Board was wrong on a question of fact alone or of law alone or of both fact and law". The original section contained a provision identical to the original s26(3) of the Opticians Act. By the Statute Law Revision Act 1935 that subsection was expunged. [The 1936 and 1959 reprints of the Dentists Act 1919 erroneously include a subs(4) to s28 of that Act.]
In summary then, with respect to the four Statutory Boards named in the original enactment of the Rules of Court, O74, r64, only the Opticians Act contained a provision applying the Rules of Court to the conduct of appeals. Presumably the rules applied to the other three Boards by virtue of the Supreme Court Civil Procedure Act on the basis that the Dentists Act, the Medical Act and the Education Act, by their terms vested appellate jurisdiction in the Court or a judge as a member of the court, whereas the Opticians Act vested that jurisdiction in a judge persona designata, thus making procedural s26(3) necessary.
There have been a number of cases in the High Court of Australia dealing with the question when statutory powers of an appellate nature given to a judge are conferred upon him as persona designata. They are all discussed at length in Hilton v Wells& Ors (1985) 157 CLR 57. One of the main questions there was whether the non–judicial power conferred by s20 of the Telecommunications (Interception) Act 1979 of the Commonwealth, which empowered a judge of the Federal Court under certain conditions to issue a warrant authorising an approved person to intercept telecommunications, conferred such power on the judges as members of that court or upon them individually as designated persons. A court of five Justices divided three to two on that question. Gibbs CJ and Wilson and Dawson JJ in a joint judgment discussed all the previous cases in that court, including Holmes v Angwin (1906) 4 CLR 297, CA MacDonald Ltd v South Australian Railways Commissioner (1911) 12 CLR 221, Medical Court of Victoria v Meyer (1937) 58 CLR 62, and Webb v Hanlon (1939) 61 CLR 313 (ibid, pp69–72). Their Honours then said this (at pp72–73):–
"It clearly appears from these authorities that where a power, judicial or non–judicial, is conferred by statute upon a court or a judge, it is not necessarily conferred on the court or the judge as such – the question is one of construction. Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended. Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to 'judge' rather than to 'court' indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it. Even if it were to be assumed that the fact that the power conferred by s20 is conferred on 'a Judge' gives rise to a prima facie presumption that it is conferred on the judge as such, and that he will determine it as a member of the court to which he belongs, we consider that there are sufficient indications in the statute to rebut that presumption."
Their Honours then proceeded to discuss the indications in the statute under consideration. In doing so, inter alia, they said (pp73–74):–
"Secondly, the nature of the power conferred is of importance in deciding whether the judge on whom it is conferred is intended to exercise it in his capacity as a judge or as a designated person. If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person. … Under s20 the judge makes no order and nothing that he does is enforced under the Federal Court of Australia Act. He grants a warrant, the effect of which depends entirely upon the Telecommunications (Interception) Act.
For these reasons we conclude that s20 confers no power on the Federal Court … The section designates the judges as individuals particularly well qualified to fulfil the sensitive role that the section envisages, …".
Mason J (as he was then) and Deane J also discussed those cases fully, together with Adelaide Fruit and Produce Exchange Co. Ltd v Adelaide Corporation (1960) 105 CLR 428 and Aston v Irvine (1955) 92 CLR 353. Their Honours said, inter alia (at pp80–81):–
"We do not regard settled principle as excluding the possibility contemplated by Latham CJ in Meyer that a function entrusted to a judge by reference to his judicial office is exercisable by him personally and otherwise than in his capacity as a judge. But to enable such a conclusion to be reached it must appear that in the performance of the function entrusted to him the judge is intended to act personally, detached from the court of which he is a member (cf Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144, at p152), so that the reference to the judge's judicial office is then seen not as a statement of the character in which the function is to be exercised, but as a qualification of his becoming a repository of the function, …".
Their Honours went on to give reasons why in the particular case they thought the power was conferred upon a judge as a member of the court, but clearly they were influenced in that decision by the constitutional consideration which they expressed as follows (at pp81–82):–
"There are compelling reasons why the Court should strictly maintain and apply established principle by insisting upon a clear expression of legislative intention before holding that functions entrusted to a judge of a Federal Court are exercisable by him personally. The ability of Parliament to confer non–judicial power on a judge of a Ch III court, as distinct from the court to which he belongs, has the potential, if it is not kept within precise limits, to undermine the doctrine in the Boilermakers' Case (1956) 94 CLR 254; (1957) 95 CLR 529; [1957] AC 288. One may ask: what is the point of our insisting, in conformity with the dictates of the Boilermakers' Case, that non–judicial functions shall not be given to a Ch. III court, if it is legitimate for Parliament to adopt the expedient of entrusting these functions to judges personally in lieu of pursuing the proscribed alternative of giving the functions to the court to which the judges belong?"
In seeking to apply those statements of principle to the present case, we are influenced, in addition to the legislative history of the Act and of similar Acts as set out above, by the extensive range of purely administrative actions by the Board of Optical Registration which are appealable to the judge, and the fact that s26 in its present form deemed it necessary to provide in subs(2) that the judge's order "shall be final and without appeal, and shall be observed by the Board and by every person concerned". If the judge were acting as a member of this Court in the performance of his appellate functions under this Act, it would not be necessary to provide that his order should be observed by the Board and by every person concerned because his orders would be enforceable by the coercive powers of this Court in respect of orders properly made by a member of it in performance of his judicial function.
For these reasons, we are of opinion that the judge acting on appeal under the Opticians Act 1913 is persona designata, and therefore all orders which he makes pursuant to those appellate powers are final and without appeal, including the order now before us. Accordingly, this appeal is not competent, and we have no jurisdiction to hear it.
List "A"
File No FCA 85/1989
BOARD OF OPTICAL REGISTRATION v EDWIN JOHN GRIST
REASONS FOR JUDGMENT FULL COURT
WRIGHT J
20 December 1989
The Board seeks to appeal against an order made by Crawford J on 8 June 1989 wherein it was declared that "the respondent is a person aggrieved by a decision and direction of the appellant Board, within the meaning of s26(1) of the Opticians Act, 1913."
Neither party has sought to challenge the accuracy of the formal order of 8 June 1989 under the hand of the Registrar, in which the foregoing declaration appears, but it seems to me that it may be a matter of considerable doubt as to whether his Honour's ruling on this preliminary point is a "determination" within the meaning of s40(1) of the Supreme Court Civil Procedure Act 1932 so as to render the ruling appealable. (See Cowen v Estcourt [1976] Tas SR 113). For present purposes however, I am prepared to make the assumption that the order is prima facie a "determination".
The grounds of appeal to this Court are as follows:
1That the learned judge erred in law in holding that a resolution of the appellant directing its Registrar to issue a summons pursuant to section 25(1) of the Opticians Act 1913 is a decision, order or direction within the meaning of section 26(1) of the Act.
2That the learned judge erred in law in holding that the respondent is a person who is aggrieved by a decision, order or direction of the appellant within the meaning of section 26(1) of the Opticians Act 1913.
Counsel for the appellant argued, in effect, that as the appeal given by s26(1) of the Opticians Act is an appeal to a judge, any "decision, order or direction" which can be the subject of appeal, must be construed narrowly so as to include only judicial or quasi–judicial determinations by the Board. It was argued that it would be quite inappropriate to give a right of appeal to a judge in respect of administrative determinations made by the Board. This argument seems to presuppose that the appeal provided for is to a judge as a member of the Supreme Court, rather than as persona designata, and further, that the appeal is necessarily by way of rehearing or rehearing de novo rather than stricto sensu, (cf In re Medical Act 1959 [1966] Tas SR 61). An initial inquiry must therefore, be made to ascertain whether at least the first of these assumptions is correct.
It is difficult to examine this problem without becoming involved in a process of circular reasoning, but I shall attempt to avoid that pitfall. As illustrated by the decision of the High Court in Hilton v Wells (1985) 157 CLR 57 at pp72–73, one of the principal tests utilised for the purpose of determining whether a judge is acting as a member of a court or otherwise, is to ask if the power which he is exercising is judicial in character or purely administrative. As Gibbs CJ, Wilson and Dawson JJ said at p73:
"If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person."
It appears to me therefore, that in the present circumstances it is both unsound and inappropriate to attempt to determine the nature of a judge's function under s26(1) without firstly considering the scope of the appeal which is granted to an aggrieved person. I can derive little assistance from considering the purpose of the Act itself in seeking to resolve this question. Any attempted resolution based upon parity of reasoning from other statutory schemes regulating professional bodies, is of doubtful validity, and also of little persuasiveness. It cannot be overlooked that the Opticians Act is now 76 years old and is a fairly early example of legislation in this State dealing with the regulation of a professional body. It is therefore not possible to see the Act as being part of some overall legislative pattern or as having a familiar structure. In the end result, I think that the plain words of the section must be given their normal and natural meaning.
Section 26(1) gives a right of appeal to any person who is aggrieved by "any decision, order or direction of the Board". On the face of it this is plainly intended to be wide reaching in its effect. It is not limited to decisions, orders or directions of a punitive or disciplinary nature; indeed it is not limited in any way whatsoever. I concur with my learned brethren Neasey and Underwood JJ, that the only proper and permissible method of controlling an otherwise apparently unfettered right of appeal is to determine in each case, whether the prospective appellant is a "person who is aggrieved" and not by seeking to "read down" the section so as to imply some restriction upon the nature of the decision, order or direction which may be the subject of an appeal. This matter was examined in detail by Crawford J and I have no present reason to doubt that he came to the correct decision that the present respondent is a person "aggrieved" by a direction of the Board and thus has the competence to appeal from the Board's direction. Plainly this construction exposes a substantial area of potential disputation between aggrieved parties and the Board, but there is no reason to suppose that the floodgates will be opened.
I turn now to consider the character in which a judge sits to entertain a s26 appeal. If I may say so with respect, the principles concerning this aspect of the case have been helpfully and instructively discussed by my learned brothers Neasey and Underwood JJ in their joint judgment.
If they are correct in their conclusions, it follows of course, that there is no appeal as such to this Court from a decision of a judge exercising jurisdiction under s26(1). Quite apart from the provisions of s26 itself, section 43(b) of the Supreme Court Civil Procedure Act 1932 provides that there is no appeal to the Full Court from a judge acting as "persona designata". That would not mean that this Court could never be required to consider jurisdictional questions arising under s26(1) of the Opticians Act. The section itself does not appear to me to give power to a judge, if he is acting as persona designata, to finally decide for all purposes whether jurisdiction exists. In the well known words of Lord Esher MR in The Queen v Commissioners for Special Purposes of the Income Tax (1888) 21 QBD 313 at p.319:
"When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shewn to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction."
If he is acting as persona designata, s26 would not permit a judge to finally determine the jurisdictional issue. It follows that such question may be judicially reviewed by prerogative writ or other appropriate procedures.
Whilst it is obviously proper and appropriate that any designated person to whom an appeal may be made under a section such as s26(1) should satisfy himself for the purposes of those proceedings whether or not he has jurisdiction, it appears to me that his determination may be challenged in the same way that any question as to the jurisdiction of an inferior court or tribunal may be challenged. Upon the judicial review of such a challenge an appeal will then, but only then, lie as of right to this Court. (See s40(1) of the Supreme Court Civil Procedure Act 1932).
Section 75 of the Supreme Court Civil Procedure Act, vests power in the Supreme Court and every judge thereof to grant a writ of certiorari for the purpose of having brought before the court or judge for examination as to its legality, (inter alia) any order or determination whatsoever which (inter alia) determines or purports to determine the existence or non–existence of any right or liability which has been made by (inter alia) any tribunal charged by law with a duty to determine any matter judicially and not merely ministerially. Section 76 contains similar provisions in respect of proceedings by way of prohibition.
Section 74 of the Supreme Court Civil Procedure Act defines a "tribunal" as including ... "any judge of the Supreme Court ... appointed or authorised to make or hold any inquiry or investigation or to hold or conduct any other proceeding whatsoever (otherwise than in exercise of his jurisdiction, power, or authority as a judge of the Supreme Court ...) when acting or purporting to act by virtue of such appointment or authority."
It is clear therefore that where there is an appellate tribunal in which the person constituting the tribunal is properly to be regarded as a designated person, rather than a constituent member of the Supreme Court, his judicial functions may be the subject of review by prerogative writ or similar process. If the appellate functions which he exercises are only exercisable in respect of a person "aggrieved", it seems to me that in the majority of circumstances, it is likely that the relevant tribunal will be acting judicially and not merely administratively in determining any matter at issue in the course of the appeal. A person "aggrieved" would normally be regarded as one whose rights, duties, obligations or legitimate expectations (as in Heatley v The Tasmanian Racing and Gaming Commission (1977) 137 CLR 487) are, or are likely to be, affected by an adverse determination or direction.
Under s26(2) of the Opticians Act, the judge to whom the appeal is taken "may make such order as he thinks just", and it is also provided that "such order shall be final and without appeal". Notwithstanding these wide powers, if the judge exercising this jurisdiction is doing so as persona designata, his principal functions are not unreviewable. (See generally, "Review of Administrative Action", Aronson and Franklin (1987) pp6, 7, 9 et seq).
The function which is challenged in the present appeal was clearly a judicial function and would therefore be one subject to judicial review particularly as the error alleged goes to jurisdiction. (See De Smith "Judicial Review of Administrative Action" 4th edn 108 et seq).
Much of the above discussion is formulated on the presupposition that my learned brethren are correct in concluding that the primary judge was acting as persona designata and not as a member of the Supreme Court. Regrettably, I cannot share their conclusion. There is a strong presumption that when a statute gives a power of determination of issues on an appeal to a judge, the jurisdiction so vested in him is as a member of the court to which he belongs. See Hilton v Wells per Gibbs CJ, Wilson and Dawson JJ, at pp72–73 and Mason and Deane JJ, at pp78–81.
Admittedly, the Opticians Act, s26 does not refer to a "judge of the Supreme Court", but any statutory reference to a judge is given that meaning by the Acts Interpretation Act. In Tasmania as there are no intermediate courts to which a judge may belong, there is plainly no need in any statute to refer to "a judge of the Supreme Court", rather than simply to a "judge". As already mentioned, the High Court concluded in Hilton v Wells that if the power exercisable by the nominated official is judicial in character, it is likely that it has been referred to him as a member of the court, whereas if the power is purely administrative, it is likely to be intended that he act as a designated person. (See Gibbs CJ, Wilson and Dawson JJ, at p73).
In light of the factors which I have discussed above concerning the nature of the jurisdiction given by s26, particularly its appellate nature and the limited class of matters that can properly be regarded as the subject of appeal by a person "aggrieved", it seems to me that in the overwhelming majority of cases, if not all cases, which can properly come before a judge under s26, he will be exercising a function which is judicial in character. Consequently I have concluded that when a judge exercises jurisdiction under that section, he does so as a member of the Supreme Court and not as a designated person. In my opinion the powers, functions and procedures provided for in s26 fortify this conclusion.
In reaching this view I have also found the reasons of Latham CJ in Medical Board of Victoria v Meyer (1937) 58 CLR 62 at pp70–74 and the reasons of Dixon J at pp92–93 of particular assistance. The Act there in question gave a much narrower right of appeal to a judge than does the Opticians Act, but many of the arguments considered by Latham CJ have a particular relevance to the provisions of the Tasmanian statute.
If I am correct therefore in concluding that the appeal given by s26 is to a judge of this Court exercising the statutorily extended jurisdiction of the Supreme Court, it seems to me that Crawford J's decision on any matter included in the appeal – even jurisdictional matters – cannot be reviewed by the Full Court.
The view has been taken consistently that legislative provisions purporting to restrict the power of a superior court to entertain an appeal and, more importantly, to limit such court's power of review by prerogative writ, are to be strictly and restrictively interpreted. See for example, Clancy v Butcher's Shop Employees Union (1904) 1 CLR 181. Even so, if the appellate jurisdiction exercisable by the Full Court (in contrast with the power of judicial review exercisable by a judge at first instance) is the jurisdiction invoked by a person seeking to challenge an order made under s26(3) of the Opticians Act, even if that order is declaratory of jurisdictional competence, it seems to me that the words "and such order shall be final and without appeal", are unambiguous and inescapable in their consequences, viz that an appeal from the judge dealing with the case at first instance cannot be entertained by this Court. That is because the Full Court's power to entertain an appeal from a judge sitting as a judge of the court is entirely statutory in origin and the legislature has made it quite plain that such an appeal is incompetent.
If I am wrong as to the character in which a judge exercises the power conferred by s26, and if the correct view is that he acts as persona designata, it seems to me that the appellant has made a fundamental procedural error in attempting to challenge Crawford J's ruling on the preliminary jurisdictional issue by bringing an appeal to this Court. The matter should have been tested, if at all, by an application for a writ of certiorari or a general order pursuant to r3 of the Civil Process Rules 1965 or by commencing an action for a declaratory order or an injunction pursuant to r1 of those Rules.
The appellant has, in a sense, fallen between two stools. Either it has appealed from a determination in respect of which there is no right of appeal, or it has attempted to short circuit the process of judicial review. I doubt that this Court has power to permit a circumvention of the plain language of s26 of the Opticians Act even though it may be desirable that procedural impediments should not be allowed to obstruct a final determination of the substantive issues if at some time it may become necessary for this Court to make such a determination. Nonetheless, as all members of the court have found it necessary to discuss the jurisdictional issues raised in the appellant's notice of appeal for the purpose of deciding this Court's own jurisdictional status, it may well be that from a practical stand point the questions seen by the parties as being in issue may be regarded as resolved, even if strictly speaking, they are not res judicata.
In summary,
(a)If Crawford J was acting as a judge of the Supreme Court and exercising the court's jurisdiction, as I believe he was, and if his ruling was a "determination" which is prima facie appealable under s40 of the Supreme Court Civil Procedure Act 1932, that process is rendered unavailable by virtue of the clear limitations imposed by s26(2) of the Opticians Act 1913.
(b)If however, Crawford J was acting as persona designata his ruling as to the jurisdictional competence of the respondent's appeal is reviewable only by a prerogative writ or civil action and not by appeal to this Court in the first instance.
On either basis it appears to me that the present appeal is not competent and must be dismissed. I therefore concur in the order proposed by my learned brethren.
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