Duralla Pty Ltd v Plant

[1984] FCA 150

Re: DURALLA PTY. LTD.
And: MERLE PLANT
No. G128 of 1983
Trade Practices - Statutes
2 FCR 342

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Smithers(1), Northrop(1) and Beaumont(1) JJ.

CATCHWORDS

Trade Practices - misleading and deceptive conduct - validity of notice avoiding contract to purchase.

Practice and procedure - nature of an appeal to Federal Court in the exercise of its appellate jurisdiction - rehearing or appeal strictly so called - retrospective legislation affecting substantive rights and its application where it comes into operation after judgment but before appeal is determined.

Building Units and Group Titles Act 1980 ss.49, 49A

Building Units and Group Titles Act Amendment Act 1983

Federal Court of Australia Act 1976 ss.24, 26, 27, 28, 32

Practice and Procedure - Appeal to Full Federal Court - Nature of - Strictu sensu - Not rehearing - Federal Court of Australia Act 1976 (Cth), ss 24, 26, 27, 28, 32.

Statutes - Retrospective provision deeming facts - Whether applicable to appeal - Building Units and Group Titles Act 1980 (Qld), s. 49A.

HEADNOTE

Upon an appeal from a decision of a single judge of the court, where between the judgment at first instance and the appeal, the relevant provisions of the Building Units and Group Titles Act 1980 (Qld) had been amended so as to deem a purchaser to have been aware of matters relevant to his right to avoid a contract under s. 49, at the time when he received a notice (the full terms of the relevant sections being set out in the judgment of Northrop J. at p. 356).

Held: 1. As a matter of construction, the amendments did not apply to the determination of the appeal, notwithstanding that they were retrospective.

2. An appeal in the Full Court of the Federal Court is an appeal in the strict sense and not an appeal by way of rehearing.

Chamberlain v. The Queen (1984) 58 A.L.J.R. 133; Victorian Stevedoring & General Contracting Co. Pty Ltd v. Dignan (1931) 46 C.L.R. 73; The Council of the Shire of Werribee v. Kerr (1928) 42 C.L.R. 1, referred to.

Boheto Pty Ltd v. Sunbird Plaza Pty Ltd unreported (Privy Council 1 May 1984), distinguished.

HEARING

Melbourne, 1984, April 16, 17; June 4. #DATE 4:6:1984

APPEAL.

Appeal from a decision of Fitzgerald J.

L. Harrison, for the appellant.

K. Boulton, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Anderson & Co.

Solicitors for the respondent: Stephens & Barbeler.

G.F.V.

ORDER

The appeal be dismissed.

The appellant pay the respondent's costs of the appeal.

Appeal dismissed with costs.

JUDGE1

By an application filed on 19 August 1983 Merle Plant (the respondent) sought relief under the Trade Practices Act 1974 (the Act) and on other grounds in respect of an agreement which Duralla Pty. Ltd. (the appellant) asserted she had entered into to purchase unit 22 in "Cleveland Waters" at Cleveland near Brisbane. Included in the relief sought was an order for the return to her of the sum of $11,595 paid by her to the appellant as a deposit in respect of the purchase. By a cross claim the appellant sought an order for specific performance of an agreement in writing between the respondent as purchaser and the appellant as vendor of the said unit dated 24 June 1982 or, in the alternative, of an alleged agreement between those parties in those capacities concerning the same unit dated 14 April 1982, or in the alternative damages for breach of one or other of such alleged agreements.

It appears that on 14 April 1982 the respondent signed an agreement (Exhibit 1) purporting to constitute an agreement by her to purchase the unit for $115,950. But that agreement was deficient in a number of respects. It was signed by the respondent in the wrong place, it did not include a schedule of finishes or plans, and it contained a number of omissions. Shortly after 14 April 1982 the respondent was requested by the appellant's real estate agent, one Fitzpatrick, to sign another document of agreement. This document (exhibit 9) was signed by the respondent. When signed there were omitted from the statement therein purporting to be a statement in compliance with s.49 of the Building Units and Group Titles Act 1980 (the Building Act 1980) particulars of the unit number, the name and address of the purchaser and the date of the statement. Also, when signed, there was no date in clause 3(a). That clause was in the following terms:-

"3(a) Settlement shall take place within twenty-one (21) days after notice from the vendor's solicitors to the purchaser or his solicitor that the relevant building units plan has been registered at the Real Property Office, Brisbane PROVIDED THAT if the building units plan is not registered by the day of 198 , then either party may cancel the contract by written notice to the other or its or his solicitors and on cancellation all money paid by the purchaser hereunder shall be refunded without deduction and neither party shall have any claim against the other party under this agreement PROVIDED FURTHER . . . "

On being signed by the respondent exhibit 9 was handed to Mr. Fitzpatrick's secretary. The omissions referred to above were later made good by a clerk in the employ of the appellant's solicitors but without reference to the respondent. It was dated 14 April 1982 but at what stage and by whom does not appear. It was signed on behalf of the appellant either before or after the omissions had been made good. The respondent was not advised of this until September 1983 in circumstances mentioned hereafter.

For some reason, possibly because the s.49 statement in exhibit 9 was signed by Mr. Fitzpatrick, who was not an authorized signatory for that purpose, Mr. Fitzpatrick requested the respondent to sign a further agreement between herself as purchaser and the appellant as vendor of the unit. This she did on 24 June 1982. In this document (exhibit 5) the date "31 December 1983" appeared in clause 3(a) and the particulars which had been omitted from the s.49 statements in exhibit 9 were set out. It does not appear whether the s.49 statement in exhibit 5 bore a signature when it was signed by the respondent. It was found by the learned Judge that exhibit 5 was not dated when signed. When taken into evidence the s.49 statement bore the signature of one Melit who, for the purposes of s.49, was duly authorized to sign it. The respondent did not retain any copy of exhibit 5 after signing it. It was found by the learned Judge that the respondent did not read exhibit 5 before signing it. He found also that she had been told and believed that it did not differ from what she had already agreed to and from what she had already signed. His Honour found that she did not know that the date "31 December 1983" to which she had never agreed, and which did not accord with what had been stated to her concerning the anticipated or contemplated date of completion of the building, was contained in clause 3(a) in exhibit 5.

It was found by the learned Judge that until May 1983 the respondent neither was given nor retained a copy of any of the documentation. It is by no means clear from the evidence precisely when any contract might have been concluded; that is to say, when and in what order the respective parties signed exhibit 5 or exhibit 9, which are the documents relied on by the appellant or when there was communication of offer and acceptance, or of the execution of the documents. However, he did not doubt that there was a concluded contract, subject to the matters now raised by the respondent, by about October 1982, as the appellant asserted in paragraph 14 of its Defence, in which it referred to its solicitors' request for the balance of the deposit and the respondent's payment of that sum. The inference that a contract was so concluded between the parties was made from the fact that the appellant in October 1982 advised the respondent that the roof slab had been poured and that the further deposit of $5,797.50 was payable. This payment was provided for in clause 2 of exhibit 5.

In May 1983 the respondent's solicitors requested the appellant's solicitors to supply a copy of the contract of sale of the Unit. Under cover of a letter dated 9 May 1983 the appellant provided the respondent's solicitors with a copy of exhibit 5. By two separate notices dated 2 June 1983 the respondent purported to avoid what was described as a contract of sale dated 14 April 1982. One of such notices stated that the respondent "hereby avoids the said contract pursuant to s.49 of the Building Units and Group Titles Act 1980 on the ground that the appellant has failed in various ways to comply with that section. The other notice stated that the respondent "hereby rescinds the agreement for sale dated 14th day of April 1982, . . . a copy of which contract is attached" on the grounds that:

(i) material alterations were made to the agreement without the knowledge or authority of the respondent subsequent to her having executed the said agreement;

(ii) the respondent was induced to enter into the agreement by material misrepresentations by or on behalf of the appellant concerning the view which the unit would have and the date by which the building would be completed, and

(iii) the agreement was void for uncertainty.

In his reasons for judgment his Honour said :-

"No reference was made in the notices dated 2 June 1983 to any contract dated 24 June 1982. The substance of the applicant's position seems to have been that she had agreed to purchase the unit in April 1982 not June 1982, an attitude which is consistent with her claim that all she was asked to sign when she signed Exhibit 5 was a further criginal copy of the contract which she had already signed. Accordingly, notwithstanding that it was a copy of Exhibit 5 which had been provided by the respondent's solicitors on 9 May 1983, the possibility of a contract dated 24 June 1982 was effectively signed by the applicant and her solicitor when notices purporting to rescind were given in June 1983. . . . (On 6 September 1983) the respondent's solicitor provided the applicant's solicitor with a copy of what is now Exhibit 9. A further notice dated 9 September 1982 was given purporting to avoid what was described as a purported contract of sale dated 24 June 1982 in reliance upon s.49 of the Building Units Act on the same grounds as those contained in the earlier notice of 2 June 1983."

In relation to the claim for relief under the Act as specified in the statement of claim as it stood at the commencement of the hearing, it was alleged that the appellant had engaged in misleading and deceptive conduct in that it had represented that there would be a good view from the unit when constructed and that the building in which the unit was to be constructed would be completed by December 1982 or January 1983. The learned Judge was not satisfied that the appellant's conduct in relation to the matters the subject of these allegations was misleading or deceptive within the meaning of s.52 of the Act. But in the special circumstances of the case an amendment to the statement of claim was permitted, when, after the hearing had concluded the appellant was permitted to call further evidence, and the respondent was permitted to call evidence on a plea of non est factum concerning exhibit 5. The substance of that evidence was that when she signed the document relied on by the appellant as constituting the agreement to purchase the unit, she was told, incorrectly, that the terms of exhibit 5, which was signed on 24 June 1982, were identical with exhibit 9 previously signed by her in connection with the proposed purchase of the unit and dated 14 April 1982.

It was decided by the learned judge that the evidence did not sustain the plea of non est factum but did establish that conduct of the appellant, in putting forward the document of 24 June 1982 as containing the same terms as the previous agreement of 14 April 1982, was misleading and deceptive and that the respondent was misled thereby. His Honour held that the misleading conduct, so established, could and did constitute a contravention of s.52 of the Act. He considered that thereby the general plea in the Statement of Claim that the respondent signed the agreement as a consequence of a contravention of s.52 of the Act was satisfied. Acting on this finding his Honour found that the respondent had validly rescinded the agreement when, on 2 June 1983, she purported to rescind the agreement on the ground that the appellant had failed to comply with s.49 of the The Building Act 1980 and on the ground that she had been misled by the respresentations that the unit would have a good view and that it would be constructed not later than January 1983. His Honour took the view that the respondent having rescinded the agreement on grounds, one or more of which were not available to her nevertheless by those notices, succeeded in rescinding the agreement. Apart from reliance on an alleged failure to comply with s.49 of the Building Act 1980, the existence of misleading and deceptive conduct different from that specified in the notice of rescission, operated to give validity to the rescission. Sheppard v. Felt & Textiles of Australia Ltd (1931) 45 CLR 359 was relied upon in this respect.

The misrepresentation concerning the contents of the document was regarded by the learned Judge as a contravention of the provisions of s.52 of the Act, and he acted on the view that as such it sufficiently supported a rescission of the contract. However there would seem to be an error in proceeding on the basis that because the respondent had been induced to sign exhibit 5 by the misrepresentation as to its contents and the applicant thereby engaged in conduct in contravention of s.52 of the Act, there was an entitlement in the respondent to rescind the agreement by her own act. If loss or damage were shown to have resulted from the contravention it would have supported a claim for damages under s.82 or relief under s.87 of the Act. But conduct, properly described as misleading and deceptive within the meaning of s.52 of the Act, does not, merely on that account provide an entitlement to relief other than the relief provided in the Act itself. And the relief provided in the Act does not include a right unilaterally to rescind any agreement entered into in consequence of such conduct. It does not follow from the provisions of the Act that misleading and deceptive conduct constituting a contravention of the Act operates in relation to a relevant contract as though that conduct were a breach of a material term of the contract. Of course, conduct properly described as misleading or deceptive within the meaning of s.52 may also constitute the making of a fraudulent or innocent misrepresentation on a matter material to the contract. If so it may in law support the rescission of the relevant contract by the party aggrieved. But the learned Judge made no such finding. Of course, innocent misrepresentation was not pleaded other than that the relevant representations were pleaded as constituting a contravention of the provisions of the Act. Fraud was not suggested.

In any event, to obtain reliefunder the Act proof of loss or damage was essential. But this action was not designed nor fought in a way which recognized this requirement. Evidence was not directed to proof of loss or damage. It is said that to enter into a contract in which the date 31 December 1983 in clause 3(a) was substituted for a date not stated inevitably involved loss or damage to the respondent. But the learned Judge made no such finding and there is insufficient evidence upon which this Court could so find. The date in clause 3(a) does not prescribe the time for completion of the unit or the building generally. It is the date after which, if the relevant building units plan is not registered at the Real Property Office, Brisbane, either party may cancel the contract. No doubt, if no date were specified in clause 3(a), entitlement to cancel would arise at the expiration of a reasonable time. There is little basis upon which the duration of that reasonable time might be determined. Evidence was not directed to that issue. The learned Judge rejected the notion that December 1982 or January 1983 was, so to speak, guaranteed. In determining the duration of a reasonable time there would have to be considered the purpose of a stipulation as to time in that clause. Depending upon circumstances a greater or longer time may have been reasonable. As was pointed out, the question of what was a reasonable time was not litigated. There was no evidence as to how long a building such as Cleveland Waters would take to complete in the ordinary course of affairs. The time that might elapse in obtaining a surveyor's certificate which was a condition of registration was not established and the time that might have elapsed in obtaining the seal of the local authority to the plan was not shown or adverted to. Nor was the possibility of time being taken up by inspections made by the Registrar of Titles and the ordinary processing of the plan in the Office of Titles. And a party contemplating a rising or a falling market might well think that for the purpose of clause 3(a) it was desirable that the period specified therein should be longer or shorter according to his assessment of the market possibilities.

In the result it is impossible for this Court to draw the inference on the evidence that the signing of the contract with the date 31 December 1983 inserted in clause 3(a) in lieu of no date at all was a detriment to the respondent or material to her signing of the document of 24 June 1982. For the same reason, even in the absence of a provision such as clause 16 of Exhibit 5 the respondent was not entitled to relief in respect of the representation as to the contents of exhibit 5 considered as an innocent misrepresentation. Materiality of the matter misrepresented is a condition of such relief. See Wilson v. Brisbane City Council (1931) St.RQ 360, per Hensham J. at 379; Halsbury 4th ed. Vol.31 p.547; Cheshire & Fifoot Law of Contract 4th Aust. Ed.271; Spencer Bower & Turner, Actionable Misrepresentation 3rd Ed. p.130.

Accordingly, relief was not available to the respondent under the Act or the general law either in respect of the alleged misrepresentation originally alleged in the statement of claim or that concerning the contents of exhibit 5.

But the question of avoidance of the contract pursuant to s.49(5) of the Building Act 1980 remains. To succeed in this appeal the appellant must show either that the finding of the learned judge that the respondent validly avoided the contract was erroneous according to the law in force at the date of his judgment, or, that this Court should itself decide whether upon the application of s.49(5) of the Building Act 1980 to the matter of the avoidance of the contract, the respondent should be taken to have been aware at all times, of the provisions of s.49 of the Building Act 1980 and of the obligations of an original proprietor thereunder and to have read any statement or notice given to her being a statement or notice required by the section to be given to her at the time when he required it. See s.3 of the Building Units and Group Titles Act 1983 (the Building Act 1983) which inserted s.49A into the Building Act 1980.

At the date of judgment s.49, so far as material was in the following form:-

"49. Duties of original proprietor. (1) An original proprietor shall give to the purchaser of a lot or of a proposed lot a statement in writing in compliance in every respect with the requirements of this section.

(2) A statement in writing under this section shall - . . .

(3) A statement in writing under this section shall -

(a) be given by the original proprietor to the purchaser before the purchaser signs any contract, agreement or document whatsoever legally binding or intended to bind the purchaser legally in respect of the sale; or

(b) form part of a contract, agreement or document referred to in paragraph (a)

(4) . . .

(5) If the original proprietor fails to give to a purchaser -

(a) a statement in compliance in every respect with subsections (1), (2) and (3); or

(b) a notice prescribed in subsection (4),

the purchaser may void the contract, agreement or other document signed by him in relation to the original proprietor by notice in writing given to the original proprietor within 30 days after he first becomes aware of the failure. . . .

(6) Upon the voidance of a contract referred to in this section the original proprietor shall be liable at law for the repayment to the purchaser of all moneys paid by him under the contract and such moneys shall be recoverable, by action as for debt, by the purchaser accordingly.

On 22 December 1983 the Building Act 1983 was passed. By s.2 thereof it amended s.49 of the Building Act 1980 by:-

"omitting subsection (5) and substituting the following subsection:-

"(5) If the original proprietor fails to give to a purchaser -

(a) a statement in compliance in every respect with subsections (1), (2) and (3); or

(b) a notice prescribed by subsection (4),

and the purchaser is materially prejudiced by the failure (proof of which shall lie on him) the purchaser may, by notice in writing given to the original proprietor, avoid the contract, agreement or other document within 30 days after he first becomes aware of the failure:

Provided that a purchaser shall not be entitled to avoid a contract, agreement or other document pursuant to this subsection if he has not given the notice of avoidance herein prescribed before the expiration of -

(a) in a case where the purchaser has become proprietor of the lot before the commencement of the Building Units and Group Titles Act Amendment Act, 1983, six months after the commencement of that Act; or

(b) in any other case, six months after the purchaser has become proprietor of the lot.

The contracts, agreements and other documents to which this subsection applies include those made before the commencement of the Building Units and Group Titles Act Amendment Act 1983 that have not been avoided before the date on which the Bill for that Act was introduced into the Legislative Assembly."; . . . "

and by s.3 thereof inserting a new section 49A in the following terms:-

"The Principal Act is amended by inserting after section 49 the following section:-

"49A Interpretation of awareness in s.49(5). For the purposes of -

(a) the avoidance of any contract, agreement or other document to which section 49(5) applies; or

(b) the giving of judgment or of a decision by any court, after the commencement of the Building units and Group Titles Act Amendment Act 1983, upon the application of section 49(5) of the Building Units and Group Titles Act 1980 to the avoidance of a contract, agreement or other document, whenever the proceedings in which the judgment or decision is to be given were commenced.

the purchaser under the contract, agreement or other document shall be taken to have been aware at all times of the provisions of section 49 or, as the case may be, section 49 of the Building Units and Group Titles Act 1980, and of the obligations of an original proprietor thereunder, and to have read any statement or notice given to him, being a statement or notice required by the section to be given to him, at the time when he received it."."

The learned Judge found that whether a contract between the appellant as vendor and the respondent as purchaser of Unit 22 came into operation by the acceptance by the respondent of the provisions of exhibit 9, or of the provisions of exhibit 5, there had been a failure by the respondent to comply with the provisions of s.49(5) of the Building Act 1980 and that the respondent by notice in writing given to the original proprietor, avoided the contract within 30 days of becoming aware of that failure.

This finding was not challenged in this appeal. Accordingly the judgment of the learned Judge given on 14 December 1983 in this matter whereby he gave judgment for the respondent for $11,595.00, the amount paid by her by way of deposit and further deposit, and dismissed the appellant's cross claim, was not given in error.

On 14 December 1983 s.49(5) of the Building Act 1980 was in force as originally enacted. But on 22 December 1983 that Act was amended by the Building Act 1983. Mr. Harrison argued that the function of this Court in this appeal was to make a decision upon the application of s.49(5) of the Building Act 1980 to the avoidance of the contract between the parties. Relying on s.49A thereof he submitted that this Court should examine the facts relating to the avoidance of the contract and decide whether upon the basis that the respondent was at all times aware of the matters set forth in the final paragraph of s.49A of the Building Act 1983 it ought not to be found that the respondent had failed to prove that she avoided the contract within 30 days after so becoming aware. He said that if the Court did this it would be apparent that the respondent did not avoid the contract within the time specified in the section.

This submission raises a number of questions. The first is whether it is the function of this Court in this appeal to make a judgment or decision upon the application of s.49(5) of the Act to the avoidance by the respondent of the relevant contract within the meaning of s.49A. If the function of this Court in this appeal were to conduct a rehearing the law to be applied would be that in force at the date of the rehearing. In the circumstances of this case the Court would, on such rehearing, be required to make a decision or judgment upon the application of s.49(5) to the relevant contract. It would itself then decide whether according to the law then in force the contract had been validly rescinded pursuant to s.49(5) of the Building Act 1980.

It is not uncommon in statutes or rules conferring or defining appellate jurisdiction to provide that an appeal is by way of rehearing. The Federal Court of Australia Act 1976 does not so provide. The appellate jurisdiction of the Full Court is conferred by s.24 of the Federal Court of Australia Act 1976. It contains the simple statement that the Court has jurisdiction to hear and determine:-

(a) appeals from judgments of the Court constituted by a single Judge;

(b) appeals from judgments of the Supreme Court of a Territory; and

(c) in such cases as are provided by any other Act, appeals from judgments of a court of a State, other than a Full Court of the Supreme Court of a State, exercising federal jurisdiction.

In respect of jurisdiction so conferred one would conclude that the grant of jurisdiction was to hear and determine appeals as appeals strictu sensu. "On an appeal strictly so called, such a judgment can only be given as ought to have been given at the original hearing; but on a rehearing such judgment may be given as ought to be given if the case came on at that time before the Court of first instance" (per Jessel M.R. in Quilter v. Mapleson (1882) 9 QBD 672 at 676). But the Federal Court of Australia Act 1976 has more to say on the matter of the appellate jurisdiction conferred by s.24. Section 27 provides that the Court shall have regard to the evidence given in the proceedings out of which the appeal arose but may receive further evidence. Section 28(1) provides that "subject to any other Act" the Court may in the exercise of its appellate jurisdiction exercise powers some of which would not be available to a Court exercising appellate jurisdiction strictu sensu. Thus it may draw inferences of fact and receive further evidence (s.27); it may set aside a jury verdict (see s.28(1)(e) and grant a new trial (see s.28(1)(f) and Duff v. R (1979/80) 28 alp 663 at 672). Also one of the forms of appellate relief authorised by s.28(1)(b) is the giving of such judgment as in all the circumstances the Court thinks fit. The question is whether the presence of these attributes converts what would otherwise be jurisdiction to hear appeals strictu sensu into a jurisdiction to hear appeals by way of a rehearing.

It is said in Chamberlain v. The Queen 1984 51 ALR 225 per Gibbs C.J. and Mason J., using the words of Griffiths C.J. in Ah Yick v. Lehmert (1905) 2 CLR 593, at 601 at p.232, that the grant of a general appeal by s.24 (1)(b) of the Federal Court of Australia Act was intended to enable the Full Court of the Federal Court to "entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous". Speaking in Ah Yick v. Lehmert (supra) the Chief Justice continued:-

"The error may consist of a wrong determination of the matter before the Court for its decision or it may consist in the assertion by that court of a jurisdiction which it does not possess . . . In all these cases the Court can exercise its appellate jurisdiction in order to set the error right."

And in the examination in Chamberlain v. The Queen (supra) of the question whether there is conferred upon the Federal Court authority to give relief to an appellant by setting aside a verdict where, although the verdict was sustainable on the evidence, it is nevertheless considered that in the circumstances it is unsafe to allow the verdict to stand, and resolving that question in the affirmative, there is no suggestion that the relevant enquiry is other than to determine whether there was error in the decision when given.

A situation having features similar in some respect to those of this case was presented to the High Court in Victorian Stevedoring & General Contracting Co. Pty. Ltd. and Another v. Dignan (1931) 46 CLR 73. There the appellant had been convicted for an offence under terms of a regulation in force at the date of the conviction. The regulation having been disallowed after the conviction, but within the time for an appeal, the question arose as to the effect thereof upon the conviction. It was said by Dixon J. as he then was at p.106, 107 and 108:-

"In my opinion, the result is that upon the disallowance of the regulation it can no longer be relied upon as a source of liability. Thus, after a regulation has been disallowed, no one is liable to conviction for an offence committed while it was in force. His liability ceases when the law is revoked that imposed it. But if he has already been convicted, then because his liability has merged in the conviction, it no longer depends upon the law under which it arose and it does not lapse with the revocation of the law. The conviction has become the source of his liability for his offence, and the conviction continues in force because its operation does not depend upon the law creating the offence, but upon the authority belonging to a judgment or sentence of a competent Court.

But what is to be done in such a case as this, where the decision that the defendants should be convicted is brought up by appeal to be considered at a time when they no longer would be liable to conviction? If the informations preferred against the defendants came on now to be heard for the first time, the charge must fail. Does the appeal to this Court bring up the proceedings so that the charge may be enquired into anew and it may be determined here whether now, at the time of dealing with the appeal, the defendants are under a present liability to conviction; or does the appeal entitle the defendants to no more than a reconsideration of the question whether, at the time of their conviction, they were actually under the liability to which they were adjudged? The appeal to this Court is given by s.73 of the Constitution, which provides that "the High Court shall have jurisdiction, with such exceptions and subject to such regulation as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences . . . of any . . . Court exercising Federal jurisdiction." It is governed by the provision of s.39(2)(b) of the Judiciary Act 1903-1927 and Section IV. of the Appeal Rules. The procedure which determines the mode of appeal does not affect the nature of the appeal itself. It is established that upon such an appeal, it is for the Court to form its own judgment of the facts so far as it is able to do so (Bell v. Stewart (1920) 28 CLR 419. For this reason an appeal to this Court is often said to be by way of rehearing. "On an appeal strictly so called, such a judgment can only be given as ought to have been given at the original hearing; but on a rehearing such a judgment may be given as ought to be given if the case came at that time before the Court of first instance" (per Jessel M.R., Quilter v. Mapleson (1882) 9 QBD 672, at p.676)). In the English Court of Appeal "all appeals are by way of rehearing, that is by trial over again, on the evidence used in the Court below; but there is special power to receive further evidence" (per Jessel, M.R., In re Chennell; Jones v. Chennell (1878) 8 Ch.D. 492 at p.505.) Accordingly, that Court must decide an appeal by applying to the circumstances as they exist, when the appeal is dealt with, the law which then operates to determine the rights and liabilities of the parties (Attorney-General v. Birmingham, Tame, and Rea District Drainage Board (1912) A.C. 788, at pp.801-802; Ex parte Thomas (1889) 60 L.T. 728; 5 TLR 234; and compare Borthwick v. Elderslie Steamship Co. (No. 2) (1905) 2 KB 516 at p.521 per Romer L.J.; Robinson & Co. v. The King (1912) 3 K.B. 183, at p.194, per Bankes L.J.. If by a retrospective change in the law, the rights and obligations of the parties come to depend upon facts which have not been ascertained, the Court of Appeal takes the necessary steps to have the dispute between the parties decided according to the law presently in force, and it may set aside the order appealed against, and remit the cause to be reheard so that the rights of the parties may be determined as at the date of rehearing (Stovin v. Fairbrass (1919) 121 LT 172; 88 L.J. K.B. 1004; 35 TLR 659.

. . .

The Rules of Procedure contained in the schedule to the statute of 1875 provided that all appeals should be brought by way of rehearing and conferred extensive powers including that of taking fresh evidence. The Lord Chancellor and the Court of Appeal in Chancery, which was established by 14 and 15 Vict. c83 exercised a jurisdiction to rehear cases determined in Chancery. . . . The remedy (available) to the unsuccessful litigant was a rehearing of the kind illustrated by the cases since decided. But such a remedy is not an appeal in the proper sense. An appeal is the right of entering a Superior Court and invoking its aid and interposition to redress the error of the Court below." (per Westbury L.C. in Attorney-General v. Sillman (1864) 10 HLC 704 at 724.

. . .

"Upon an appeal to the Privy Council, the question considered is whether the judgment complained of was right when given (Ponnamamma v. Arumogam (1905) A.C. 383, at p.388; Donegani v. Donegani (1835) 3 Knapp 63, at p.88). "Without limiting the extent of His Majesty's prerogative, their Lordships can safely say that it is not the practice of this Board to enter any other appeal than one strictly so called, in which the question is whether the order of the Court from which the appeal is brought was right on the materials which that Court had before it" (per Lord Davey in Ponnamma v. Arumogam (1905) A.C., at p.390). The analogy of the English Court of Appeal is therefore not a sufficient foundation for holding that the appeal to this Court involves a rehearing of the cause at the date of the appeal."

The presence of the attributes of this Court introduced by s.28 certainly brings the analogy a little closer to this Court. However, from the observations of Lord Davey following those above it is clear that the appeal to the Board remained an appeal strictu sensu, notwithstanding, that if the Board considered that the Court below had not sufficient materials for its judgment, or improperly omitted to receive, or to require further evidence, or to try some issue, it might remit the case for further hearing. Thus it appears that an appeal may retain its essential nature as an appeal strictu sensu notwithstanding that remedies not available on such an appeal may be extended.

It is to be observed also that appellate jurisdiction conferred in the simple terms of s.24(1) is conferred "subject to this section and to any other Act". The grant of jurisdiction is thus independent of ss.27 and 28. The provisions of those sections introduce attributes of the jurisdiction but do not necessarily change or establish its essential nature.

It is to be noted also that were the Court to proceed by way of rehearing would be an exercise in the nature of exercising original jurisdiction. In an appeal from a Court of a Territory or an appeal from a judgment of a Court of a State the exercise of original jurisdiction would not be appropriate: see the remarks of Isaacs J. in Werribee v. Kerr (1928) 42 CLR at p.20, and the remarks of Dixon J. in Victorian Stevedoring & General Contracting Co. Pty. Ltd. & Anor v. Dignan (supra) at p.110. The dichotomy between original and appellate jurisdiction in Part III of the Federal Court of Australia Act 1976 is precise.

There was reason therefore for Parliament to refrain from conferring upon the Full Court of the Federal Court jurisdiction to hear and determine appeals by way of rehearing. At the same time flexibility and amplitude in remedies available on appeals to this Court were desirable. These were attainable by giving to a Court, whose duty it was to enquire as to the correctness of a decision appealed from as at the date it was given, without changing the nature of the appeal, powers to give relief outside the range of those ordinarily available on an appeal strictu sensu. The question before this Court may remain whether there was error in the judgment at first instance when it was givem, although by virtue of ss.27 and 28 of the Act, proceedings upon an appeal to this Court may involve reference by it to matters which have occurred after the judgment appealed from was given. Thus in Hoare v. The Queen NTG No. 5 of 1982, 31 March 1983 (unreported), evidence of a crown witness, available, only after conviction of an accused person, to the effect that he had committed perjury at the trial, was heard on appeal by the accused and resulted in an order setting aside the verdict and conviction and providing for a new trial. But in the exercise, in this case, of its appellate jurisdiction, the circumstances do not require the exercise of any powers other than those ordinarily within the authority of a court exercising appellate jurisdiction strictu sensu. However, if in the present case, it appeared for instance that the learned Judge had failed to inform himself as to the date from which the thirty day period specified in s.49(5) of the Building Act 1980 should be calculated it would in all probability have been necessary for this Court to have looked at the relevant facts and drawn the relevant inferences and those inferences might well have determined the fate of the appeal. In such case it might be contended that this Court was making a decision upon the application of s.49(5) to the avoidance of the contract. And the critical question is whether, within the meaning of s.49A the judgment or decision to be given by this Court is to be characterised as a judgment or decision upon the applicability of s.49(5) to the avoidance of the contract. If it is, then the provisions of s.49A are applicable "for the purpose of" such judgment or decision.

Mr. Harrison argued that notwithstanding the fact that there is no error in the application by the learned Judge of s.49(5) to the avoidance of this contract, this Court, whether it allows or dismisses the appeal, is inevitably involved in making a judgment or decision upon the application of s.49(5) to the avoidance of the contract. He contends that the grounds of appeal, at least, raise questions which necessitate the giving of a judgment or decision by this Court as to the application of s.49(5) to the avoidance of the contract. And it is said that if s.49A operates in respect of situations in which a court of first instance has already given a decision, which is binding, subject to appeal on the parties as to the application of s.49(5) as in force at the date of its decision whether that court is, for instance, the Supreme Court of Queensland or the Federal Court of Australia in the course of its accrued jurisdiction under s.22 then, when that decision is challenged in an appellate court, the judgment or decision of that court is inevitably a judgment or decision upon the application of the provisions of s.49(5) upon the avoidance of the contract and accordingly a judgment or decision to which the provisions of s.49A apply.

It is my view, however, that s.49A does not so operate. The question is one of construction. The provisions of the section are substantive and not procedural. They operate to create what may be a fictitious factual situation, one contrary to the reality. Thus, existing legal rights of persons who have validly avoided contracts may be taken away. According to ordinary canons of construction, therefore, the provisions of s.49A should be construed to operate no more widely than is necessary upon the natural and ordinary meaning of the language used. According to the natural meaning of s.49A, each of para (a) or (b) thereof makes provision for events which will occur in the future. It provides a presumption of fact applicable to avoidance of contracts yet to occur. It provides a similar presumption applicable to judgments and decisions yet to be given upon the application of s.49(5) to an avoidance of a contract. The presumption is to operate where, in the future, a court will, in the course of exercising its jurisdiction, be required to pass upon the application of s.49(5) to the avoidance of a contract. It does not require a court exercising jurisdiction, in the course of which it is not required to give judgment or decision upon the application, as at the date of its decision, of s.49(5) to an avoidance of a contract, to give judgment by reference to the presumption created by s.49A. The importance of this is that if the appeal to this Court is to be conducted as an appeal strictu sensu then this court will decide whether the trial judge erred in deciding upon the application of s.49(5), as in force at the date of his judgment, to the avoidance of the relevant contract but will not itself make a decision upon the application of s.49(5) to the relevant avoidance of the contract in question.

As indicated above there is a sense in which this Court's judgment or decision must be a judgment or a decision upon the application of s.49(5) to the contract. But, in the context of the proper function of this Court, in this case, it is not such a judgment or decision within the meaning of s.49A. In this appeal it is not required that the Court should grant any remedy or adopt any procedure other than such as is appropriate to the exercise of the function of a Court exercising appellate jurisdiction strictu sensu. The only question is whether the learned Judge was in error in some matter of fact or of the law, then in issue, in giving his judgment, on the date on which he gave it. The judgment and decision given by this Court in this appeal on that question is, in my opinion, not a judgment or decision upon the application, as at the date of determination of the appeal, of s.49(5) to the avoidance of the contract. And it is only a judgment or decision of that kind which, on the proper construction of s.49A, is a judgment or decision within the meaning of s.49A.

Section 49A looks forward to a situation in which a Court will, in the exercise of its jurisdiction, give or be required to give a judgment or make a decision upon the application as at the date of that judgment or decision, of s.49(5) to the avoidance of a contract. Where, operating as an appeal court in an appeal strictu sensu, the Court considers that the judgment of the learned judge at first instance was in error as to the application of s.49(5) to the avoidance of the contract it would be required, perhaps by drawing inferences and possibly with the assistance of fresh evidence, to decide what the judgment of the learned judge should have been at the date on which he gave it. It would not be deciding whether, on the facts existing and the law in force at the date of the judgment on appeal, there was or was not a valid avoidance of the contract under s.49(5). At first instance the question was, what is the effect according to law as at this date of applying s.49(5) to the avoidance of the contract. That is also the question before the appeal court acting strictu sensu. The question before a court in contemplation of s.49A, and identified as a matter of construction thereof, will inevitably be, what, according to the law as it is at the date of its judgment, is the effect of applying s.49(5) to the avoidance of the contract. It is not to be thought that, on its proper construction, s.49A has in contemplation a court which will give a decision, not as to whether at the date thereof there has been a valid avoidance of a contract under s.49(5) under the law then in force, but whether an earlier judgment of another court as to whether, at the date it was given, there was a valid avoidance of the contract according to the facts then existing and the law then in force, was correct. Treating this Court's jurisdiction as jurisdiction to hear and determine appeals strictu sensu, as in my opinion it is, this Court is a Court of the latter kind.

Mr. Harrison referred to the judgment of the Privy Council in Boheto Pty. Ltd. v. Sunbird Plaza Pty. Ltd. The reasons were not available when this appeal was heard but subsequently became available. That case involved yet another "off the plan" purchase of a unit and the questions before the Privy Council were whether the decision of the Full Court of Queensland upholding the entry of summary judgment for specific performance against the appellant was correct and whether in making its decision the Privy Council was itself making a decision in which it was, within the meaning of s.49A, required to apply the provisions of that section. It held that it was and that accordingly, although the decisions of the Court of first instance and the Court of Appeal were both delivered before s.49A was enacted, the provisions of part (b) of s.49A, should be applied in its decision on the appeal to it. This view would appear to reflect an approach appropriate to an adjudication on appeal by way of rehearing.

If the appeal were an appeal by way of rehearing a decision would have to be made by the Privy Council as to whether according to the law in force at the date of the appeal to it, including the statutory presumptions in para (b) of s.49A, the avoidance had been legally effectuated. But if the appeal was an appeal strictu sensu the decision to be made would be whether the Full Court judgment was correct according to the law as in force at the date of judgment. And the significant factor is even if an appellate court acting strictu sensu decided, as it might, that there was an error at first instance in the application of s.49(5) of the Building Act 1980 and gave judgment allowing the appeal, that judgment would be a judgment as to the rights of the parties as at the date of the judgment under appeal according to the law then in force.

It is correct to say as their Lordship's say that they "must now give a decision upon the application of s.49(5) of the 1980 Act to the avoidance of the contract", but it would be going one step further to say that they must give a decision upon the application to that section to the avoidance of the contract as at the date of the appeal to them and in accordance with the law which came into force after the judgment appealed against. The judgment of the Privy Council appears to go that far but so far as it does, it must be on the basis that the task before the Board was to hear the appeal by way of rehearing. It has been said by the Privy Council in Ponnamamma v. Arumogam (1905) A.C. 383 at p.388 that its appellate jurisdiction was to be exercised strictu sensu, but it is a matter for the Privy Council. This Court however, cannot treat itself as conducting a rehearing. The question before it is whether the judgment under appeal was correct when decided.

As previously stated s.49A requires every court to act on certain assumptions for the purpose of it giving a decision upon the application of s.49(5) to the avoidance of a contract. Section 49A would require this Court to make those assumptions if it was called upon to make a decision whether, as at the date thereof, avoidance was to be regarded as effective or otherwise. But this Court's task is to decide whether when the decision under appeal was given it was correct according to the then current law. And nothing can change this unless the nature of an appeal to this court is to be changed from an appeal strictu sensu to an appeal by way of rehearing. Section 49A does not purport to do that. Section 49A looks forward to a situation in which, no decision having theretofore been given on the matter or where there is such a decision a further decision has to be given de novo, a court is required to give a decision upon the application of s.49(5) to the avoidance of the contract, situations in which, quite clearly, the statutory presumptions applicable at the time of the decision must be applied. The decision this Court is required to give is not such a situation.

So to construe para (b) of s.49A is to give full weight to its terms in their natural meaning and can hardly be said to frustrate their apparent intention. A decision of the kind referred to in s.49A must be a decision according to law as established in s.49A. Where a decision has to be made by a court in one of the situations referred to above it may be a decision concerning an avoidance which occurred before s.49A was enacted as well as one which occurred after. The section looks forward to guiding the court as to what it is to do in giving a decision which it itself is to give upon the avoidance of the contract in which the rights of the parties are to be determined by reference to the law in force at the time of that decision. Such a decision, which must be one made after s.49A was enacted, must apply its provisions. But s.49A has nothing to say as to any presumption being applicable, "for the purpose of a court deciding" whether an earlier decision of a Court was correct when made. This does not mean that a court of appeal would not correct a decision made after s.49A was enacted in which the statutory provisions of s.49(5) had been erroneously ignored. But in such a case the question before the court of appeal acting strictu sensu would remain one as to what the rights of the parties were as at the date of the judgment under appeal.

Having regard to the foregoing the observations of the Privy Council in Boheto Pty. Ltd. v. Sunbird Plaza Pty. Ltd. (supra) are not pertinent to the function before this Court in this appeal.

Accordingly the decision to be made by this Court, whether it allows or rejects the appeal, will be a decision as to the application of s.49(5) as to the rights of the parties as at the date of the judgment under appeal and thus not a judgment or decision within the meaning of s.49A of the Act. Accordingly, the presumptions of fact introduced by s.49A do not operate on the issues in this appeal.

Having regard to the foregoing the judgment of the learned trial judge must be affirmed and this appeal dismissed with costs.

JUDGE2

I have had the advantage of reading the judgments of Smithers J. and Beaumont J.. I agree with their reasons and concur in the orders proposed. I desire, however, to make some further observations relating to the issue of the nature of an appeal to the Federal Court in the exercise of its appellate jurisdiction.

The facts giving rise to this issue can be stated in short form. On 14 December 1983, judgment was given in favour of the respondent against the appellant. That judgment was based on facts properly found by the trial Judge who applied the then law to those facts without error. On 22 December 1983 the relevant statutory law was amended with retrospective effect, as appears from the judgment of Smithers J., with the result that the respondent must have been deemed first to have become aware of the failure by the appellant to have given a statement in compliance in every respect with the statutory requirements at the latest on 24 June 1982. Therefore, the appellant ceased to be entitled to avoid the contract thirty days thereafter. If the amended Building Units Act had been in operation on 14 December 1983 the respondent could not have proved that she had validly avoided the contract and thus her application would have been dismissed and there would have been judgment for the appellant. The issue, therefore, is whether on this appeal the Federal Court, constituted as a Full Court exercising appellate jurisdiction, is required to apply the law as it was on 14 December 1983, or as it is now. In substance, the answer to this question depends on whether the appeal is in the nature of a rehearing or is an appeal strictly so called.

It is interesting to note that this type of problem has had a long history. The headnote to Shaw v. The Costerfield Gold and Antimony Mining Company Registered (1870) 1 V.R. (W) 7, states the general principle:

"A re-hearing should be decided according to the law at the time of the re-hearing. But Semble, an appeal should be decided by the law as it stood at the time of the original hearing, and not as altered by a retrospective Act, coming into force between the hearing and appeal."

That case has strange similarities to Boheto Pty. Ltd. v. Sunbird Plaza Pty. Ltd., Privy Council, 1 May 1984, presently unreported. That decision is considered in some detail later in these reasons. In Shaw's case, Molesworth J. of the Supreme Court of Victoria, sitting in his capacity as Cheif Judge of the Court of Mines, was considering an appeal from a Judge of the Court of Mines. In January 1867 one Coster, a shareholder in the company, made default in the payment of a call on the shares held by him. Thereafter, the company, in accordance with its articles, forfeited those shares. On 9 September 1869, in Nolan v. The Annabella Company (1869), 6 V.R. (M) 38, Molesworth J. held that the relevant statutory provisions then in operation did not authorize the making of an article for the forfeiture of shares. As said by Molesworth J. in Shaw's case at p.10:

"The case of Nolan v. The Annabella Company, as to forfeitures, was decided by me 9th September, and caused a good deal of sensation as contrary to received opinion and practice in the mining community; terminating in Legislative interference by the Act No. 354."

The effect of Act No. 354, which came into operation on 14 October 1869, was to authorize the making of an article for the forfeiture of shares and that authorization was given retrospective effect to a date prior to the time when the Costerfield Mining Company forfeited the shares held by Coster. Thereafter, Shaw, as the trustee of the estate of Coster, then a bankrupt, successfully sued in the Court of Mines for a decree declaring the forfeiture invalid. The company appealed. Molesworth J. held that Nolan's case did not apply to render the company's article relating to forfeiture invalid. Because of the view of the law taken by the trial Judge, all material evidence to support the validity of the forfeiture had not been given at the trial. On the appeal, Molesworth J. indicated that he proposed to take evidence if either party so wished, but that he would take as read, without objection, the deed of association of the company and certain Government Gazettes. Neither party desired to lead further evidence. On the question of the retrospective effect of the Act, his Honour said at pp.12-13:

"As to the effect of the Act, if I re-hear I should decide the case with the Defendant as according to the law at the time of the re-hearing: Warne v. Beresford (2 M. & W., 348). Independent of that, I doubt if I should reverse a decree which was right according to the law when it was made."

The reasoning of Molesworth J. is completely consistent with the opinions expressed by the Privy Council in Boheto's case. In Boheto's case, the respondent (vendor) was a vendor of a lot coming within the provisions of the Building Units Act. By contract dated 27 May 1981 the appellant (purchaser) agreed to buy the lot. The purchaser's solicitors received a copy on the contract on 1 June 1981. By notice dated 24 June 1982 the purchaser purported to avoid the contract under the Building Units Act on the basis that the statement given by the vendor was not in compliance with the requirements of that Act. The vendor commenced proceedings claiming specific performance of the contract asserting that even if it had not complied with the requirements of the Building Units Act, the appellant first became aware of that failure when the purchaser's solicitors received the executed contract on 1 June 1981 and therefore the power of avoidance under the Building Units Act had terminated at the end of June 1981, being a date long before the purchaser purported to avoid the contract.

On 20 September 1982, the Supreme Court of Queensland ordered that the vendor have leave to enter judgment against the purchaser for specific performance of the contract, and in so doing refused leave to the purchaser to defend the action. That refusal must have been based on the fact that the respondent had failed to show that it was entitled to avoid the contract under the Building Units Act. On 10 February 1983, the Full Court of the Supreme Court of Queensland dismissed an appeal by the purchaser from that order. On 2 March 1983, leave was granted to the respondent to appeal to Her Majesty in Council against the order of the Full Court. Thereafter, on 16 November 1983, the High Court gave judgment in Deming No. 456 Pty. Ltd. v. Brisbane Unit Development Corporation Pty. Ltd. (1983) 50 A.L.R. 1, holding, by majority, that a purchaser did not become aware of the failure of an original proprietor to comply with s.49 of the Building Units Act until the purchaser acquired knowledge of the provisions of s.49 and appreciated the meaning and effect of those provisions and understood that the original proprietor had failed to discharge the obligations imposed on him by s.49. It is clear that that decision resulted in the construction of a statute and thus related to a question of law.

In its opinion, the Privy Council, surprisingly, does not indicate whether the purchaser had made submissions to the courts below on the construction of the Building Units Act similar to the construction adopted by the High Court. Further, the Privy Council, surprisingly, does not indicate whether the purchaser had attempted to show facts which would bring it within the benefits of the Building Units Act on such a construction of the section. The opinion of the Privy Council states:

"For the purposes of this appeal their Lordships accept, without comment, that the purchaser and the purchaser's solicitors were, between 1st June 1981 and 18th June 1982, unaware of the contents or effect of section 49 of the 1980 Act or did not understand that the contract dated 27th May 1981 did not comply, and that the vendor had failed to comply, in every respect with the provisions of section 49. In these circumstances the contract was voidable from 1st June 1981 but the purchaser did not appreciate that the contract was voidable until 18th June 1982."

It is not clear whether there was any material before the courts below to support that assumption. In any event, the courts below must have held that the purported notice avoiding the contract was ineffective, i.e. contrary to the assumption made for the purposes of the appeal. In any event, the Privy Council, in commenting on the construction of the Building Units Act adopted by the High Court in Deming's case said:

"This surprising construction of the 1980 Act was not surprisingly corrected by the Building Units and Group Titles Act Amendment Act 1983 which became law on 22nd December 1983. The question is whether the 1983 Act governs this present appeal."

The short answer to the appeal was that if the appeal succeeded, the summary judgment of the courts below would be set aside and the purchaser would be given leave to defend the specific performance action. At the trial of that action the amended Building Units Act would apply of necessity and the purchaser thus could not succeed in its defence. In giving its opinion, however, the Privy Council said:

"On behalf of the purchaser it was submitted, and there is a wealth of authority to prove, that the court will not give retrospective effect further than is necessary to comply with the plain meaning of a statute. Following this principle, it was argued that paragraph (b) of section 49A only applies to a contract which was avoided after 22nd December 1983, the date when the 1983 Act came into force. But such a limitation would stultify paragraph (b) of section 49A and is inconsistent with the requirement that every decision of any court after 22nd December 1983 must be made on the assumptions which the High Court of Australia declined to make in the Deming Case. Section 49A being clearly retrospective in its operation, and an intention having been shown that the Act should operate on pending proceedings, an appellate court is bound to give effect to it accordingly. See Attorney-General v. Vernazza (1960) 3 All E.R. 97 at 101."

The last part of that paragraph appears to give the answer to the issue arising in the present appeal. However, the answer to that issue is not as clear as it appears. With the greatest respect, the Privy Council appears to have over-simplified the issue.

The reference to the case of Attorney-General v. Vernazza is to what Lord Denning, speaking as a member of the House of Lords, said at p.101:

"But what about the Court of Appeal? The new Act was passed after the judgment of the High Court and before the hearing in the Court of Appeal. Can the Court of Appeal take the new Act into account and make an order under it or must it leave the Attorney-General to make a fresh application to the High Court? It is, of course, clear that, in the ordinary way, the Court of Appeal cannot take into account a statute which has been passed in the interval since the case was decided at first instance, because the rights of litigants are generally to be determined according to the law in force at the date of the earlier proceedings: see Re Debtor, Ex p. Debtor (No. 490 of 1935) ((1936) Ch. 237), New Brunswick Ry. Co. v. British & French Trust Corpn., Ltd. ((1939) A.C. 1). But it is different when the statute is retrospective either because it contains clear words to that effect or because it deals with matters of procedure only; for then Parliament has shown an intention that the Act should operate on pending proceedings, and the Court of Appeal are entitled to give effect to this retrospective intent as well as a court of first instance: see Quilter v. Mapleson ((1882), 9 Q.B.D. 672) and Stovin v. Fairbrass ((1919), 88 L.J.K.B. 1004). Those decisions seem to me to show that the Court of Appeal can give effect to a retrospective Act passed in the interval since the case was at first instance, no matter whether it deals with vested rights or with procedure only; for, as Harman, L.J., pointed out ((1960) 1 All E.R. at p. 192), the retrospective Act in Quilter v. Mapleson affected the vested right of the landlord to recover possession. And the retrospective Act in Stovin v. Fairbrass affected the vested right of the statutory tenant to remain in possession."

With respect, that statement is correct, since the nature of an appeal before the Court of Appeal is that of a rehearing, as will be explained later. The nature of an appeal to the Privy Council on the other hand is an appeal strictly so called, and the question is whether the judgment under appeal was correct when given. In Ponnamma v. Arumogam (1905) A.C. 383, the Privy Council said at p.390:

"Quilter v. Mapleson ((1882) 9 Q.B.D. 672) was decided on a rule which prescribes that 'all appeals to the Court of Appeal shall be by way of rehearing.' And Jessel M.R. pointed out (9 Q.B.D. at p.676) that on an appeal strictly so called such a judgment can only be given as ought to have been given at the original hearing, but on a rehearing such a judgment may be given as ought to be given if the case came at that time before the Court of first instance. In like manner the Supreme Court in Silva v. Swaris (1 Balasingham's Rep 61) relied on the terms defining their appellate jurisdiction, which they thought, rightly or wrongly, went beyond the correction of errors made by the Courts below. Without limiting the extent of His Majesty's prerogative, their Lordships can safely say that it is not the practice of this Board to entertain any other appeal than one strictly so called, in which the question is whether the order of the Court from which the appeal is brought was right on the materials which the Court had before it. The Board may, however, think that the Court below had not sufficient materials for its judgment, or improperly omitted to receive or to require further evidence, or to try some issue, in which case it may remit the case for further hearing."

The starting point for the consideration of this issue is the opinions expressed in Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan (1931) 46 C.L.R. 73. In that case the appellants had been convicted in a Magistrate's Court for an offence under a Commonwealth regulation in force at the time of the convictions. Subsequently, the regulation was disallowed within the time allowed for an appeal. The appellants appealed to the High Court. On the appeal the Court, by majority, allowed the appellants to read an affidavit setting out those facts as well as the fact that neither the fines imposed on the appellants nor the costs awarded against them had been paid. An issue arose on the appeal relating to the effect of the disallowance of the regulation upon the convictions. That issue was discussed at length by Dixon J. at pp.104-111, a passage which should be read. The following extract from that passage appears at pp.106-8:

"But what is to be done in such a case as this, where the decision that the defendants should be convicted is brought up by appeal to be considered at a time when they no longer would be liable to conviction? If the informations preferred against the defendants came on now to be heard for the first time, the charge must fail. Does the appeal to this Court bring up the proceedings so that the charge may be enquired into anew and it may be determined here whether now, at the time of dealing with the appeal, the defendants are under a present liability to conviction; or does the appeal entitle the defendants to no more than a reconsideration of the question whether, at the time of their conviction, they were actually under the liability to which they were adjudged? The appeal to this Court is given by sec. 73 of the Constitution, which provides that 'the High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences ... (ii) Of any ... Court exercising Federal jurisdiction.' It is governed by the provisions of sec. 39(2)(b) of the Judiciary Act 1903-1927 and Section IV. of the Appeal Rules. The procedure which determines the mode of appeal does not affect the nature of the appeal itself. It is established that upon such an appeal, it is for the Court to form its own judgment of the facts so far as it is able to do so. (Bell v. Stewart ((1920) 28 C.L.R. 419)). For this reason an appeal to this Court is often said to be by way of rehearing. 'On an appeal strictly so called, such a judgment can only be given as ought to have been given at the original hearing; but on a rehearing such a judgment may be given as ought to be given if the case came at that time before the Court of first instance' (per Jessel M.R., Quilter v. Mapleson ((1882) 9 Q.B.D. 672, at p.676). In the English Court of Appeal 'all appeals are by way of rehearing, that is by trial over again, on the evidence used in the Court below; but there is special power to receive further evidence' (per Jessel M.R., In re Chennell; Jones v. Chennell ((1878) 8 Ch. D. 492, at p.505)). Accordingly, that Court must decide an appeal by applying to the circumstances as they exist, when the appeal is dealt with, the law which then operates to determine the rights and liabilities of the parties (Attorney-General v. Birmingham, Tame, and Rea District Drainage Board ((1912) A.C. 788, at pp.801-802); Ex parte Thomas ((1889) 60 L.T. 728; 5 T.L.R. 234); and compare Borthwick v. Elderslie Steamship Co. (No. 2) ((1905) 2 K.B. 516, at p.521, per Romer L.J.); Robinson & Co. v. The King ((1921) 3 K.B. 183, at p.194, per Bankes L.J.)). If, by a retrospective change in the law, the rights and obligations of the parties come to depend upon facts which have not been ascertained, the Court of Appeal takes the necessary steps to have the dispute between the parties decided according to the law presently in force, and it may set aside the order appealed against, and remit the cause to be reheard so that the rights of the parties may be determined as at the date of rehearing (Stovin v. Fairbrass ((1919) 121 L.T. 172; 88 L.J.))."

At pp.110-111 his Honour concluded:

"On the whole, I am of opinion that the appellate power does not enable or require this Court to deal with the rights and liabilities or immunities of the parties which have been acquired, incurred, or secured after the judgment appealed from, and that it is confined to the position of the parties at the time the judgment complained of was given."

The issue was discussed by Evatt J. at pp. 112-3 and the following extract is taken from that passage:

"In my opinion the 'appeal' mentioned in sec. 73 of the Constitution and in sec. 39(2)(b) of the Judiciary Act is an appeal strictly so called. If so, it is not competent for this Court to take into consideration, for the purposes of exercising its appellate jurisdiction, matters which have occurred since the decision of the Magistrate. On the contrary, the Court 'is required to examine the merits and correct any error in the decision,' as was pointed out by Griffith C.J. in the Tramways Case (No. 1) ((1914) 18 C.L.R. 54, at p.61). The distinction between an appeal in its strict sense, and one which is in the nature of a rehearing has often been emphasized, and I need only refer to the case of Quilter v. Mapleson ((1882) 9 Q.B.D. 672) and to the judgment of Lord Davey for the Judicial Committee of the Privy Council in Ponnamma v. Arumogam ((1905) A.C., at p.390). Of course there may be appeals in which it is proper to bring to the notice of this Court facts which have occurred after the pronouncement of the decision appealed against. Occasionally, the Court may think it proper to refrain from exercising its appellate jurisdiction because of such facts. If, however, the jurisdiction is to be exercised at all, it must be for the purpose of determining whether the decision of the inferior tribunal was right or wrong when it was pronounced."

The issue is re-stated and the position further illustrated by Mason J. in Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (1976) 135 C.L.R. 616 at pp. 619-622, another passage that should be read.

The difference between an appeal by way of rehearing and an appeal strictly so called is referred to in Warren v. Coombes (1979) 142 C.L.R. 531 per Gibbs A.C.J., Jacobs and Murphy JJ. at p.537:

"We are concerned, of course, with an appellate tribunal to which there is an appeal by way of rehearing (Supreme Court Act, 1970 (N.S.W.), as amended s.75A(5)) and which has the powers and duties of the court from which the appeal is brought, including those of drawing inferences and making findings of fact (s.75A(6)(b)). In other words the Court of Appeal is in the same position as the Court of Appeal in England and the Full Courts of the Supreme Courts of the other States. The appeal, although by way of rehearing, is conducted on the transcript of the evidence taken at the trial, and the witnesses are not called to give their evidence afresh, but the appeal is a general appeal and is not limited, for example, to questions of law."

It should be noted that the words "the appeal shall be by way of rehearing" do not appear in the Supreme Court Rules providing for appeals to the Full Court of the Supreme Court of Victoria; see 0.58, but those rules do make provision enabling a Full Court to receive further evidence and enabling the Full Court to draw inferences of fact and make any order that ought to have been made and such further order as the case requires; see 0.58, r.12. These provisions are similar to those which have been contained in 0.58 since at least 1906. The nature of an appeal to the Full Court of the Supreme Court of Victoria is discussed by Lush J. in Freeman v. Rabinov (1981) V.R. 539 at pp.546-8, another passage which should be read. In that passage, and after referring to Dignan's case and a number of other authorites and setting out the history showing how the words "by way of rehearing" were removed from the Victorian Supreme Court Rules in 1906, his Honour said at p.548:

"In the result the rules of this Court appear, by allowing and in some case requiring the consideration of further evidence, and in spite of the omission of the reference to rehearing, to contemplate a wider power than exists in a court hearing an 'appeal strictly so called'. To say that the court is 'rehearing' cases may be difficult in view of the history of 0.58, r.1, but the issue may be one of terms. In my opinion this Court has powers which at least go so far as to enable it to vary such an order as was made on 28 February 1980 if the operation of that order can be said to have worked an injustice."

Despite these differences, as is illustrated by Martin v. Option Investments (Aust.) Pty. Ltd. (No. 2) (1982) V.R. 464, the Supreme Court of Victoria applies the principles stated in Warren v. Coombes at p.551:

"Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it."

The Federal Court of Australia, in the exercise of its appellate jurisdiction, applies the same principles.

In the light of these considerations it is necessary to study the nature of the appellate jurisdiction of the Federal Court. That jurisdiction is conferred by Division 2 of Part 111 of the Federal Court of Australia Act 1976. That Division is headed "Appellate and related Jurisdiction" and comprises sections 24-30 inclusive. Under sub-section 24(1) the Federal Court has jurisdiction to hear and determine:

"(a) appeals from judgments of the Court constituted by a single Judge;

(b) appeals from judgments of the Supreme Court of a Territory; and

(c) in such cases as are provided by any other Act, appeals from judgments of a court of a State, other than a Full Court of the Supreme Court of a State, exercising federal jurisdiction."

In passing, it is noted that the Federal Court may not have original jurisdiction to hear and determine all matters arising from judgments of the Supreme Court of a Territory, but that it may, under s.32 Federal Court of Australia Act, have original jurisdiction to hear and determine all matters which arise from judgments of a Supreme Court of a State and coming within placitum (c).

Under s.25, the appellate jurisdiction is to be exercised by a Full Court. Section 27 is set out in full:

"27. In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken on affidavit, by oral examination before the Court or a Judge or otherwise in accordance with section 46."

In the exercise of its appellate jurisdiction the Federal Court has the wide powers set out in sub-section 28(1). For present purposes, placita (a), (b) and (c) are set out. The Court is empowered to:

"(a) affirm, reverse or vary the judgment appealed from;

(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;"

It is important to remember that words "by way of rehearing" do not appear in the Federal Court of Australia Act to describe the nature of an appeal before the Federal Court exercising appellate jurisdiction. There may have been Constitutional difficulties in doing that. Thus the simple application of authorities relating to the Court of Appeal in England is not open. Nevertheless, some of the attributes of the appeal being in the nature of a rehearing do apply. There is a power conferred upon the Court to admit further evidence. There is the wide range of orders that the Court may make on an appeal. There is the power to draw inferences of fact. These powers suggest that the nature of the appeal is by way of rehearing. At the same time, the Federal Court of Australia Act clearly discriminates between the original and appellate jurisdictions of the Federal Court. This discrimination is of importance. In speaking of the nature of an appeal to the High Court, Dixon J., in Dignan's case said at p.109:

"The analogy of the English Court of Appeal is therefore not a sufficient foundation for holding that the appeal to this Court involves a rehearing of the cause as at the date of the appeal. In conferring jurisdiction upon this Court, the Constitution clearly discriminates between original and appellate jurisdiction. The simple language in which the appellate power is conferred, although implying the fullest authority to ascertain whether the judgment below ought, or ought not, to have been given, contains nothing to suggest that this Court is to go beyond the jurisdiction or capacity of the Court appealed from. To do complete justice between the parties litigant, as, according to Lord Atkinson, the Court of Appeal ought to do even though it should involve the making of an order which the Court below had not jurisdiction or power to make, smacks rather of original jurisdiction (Banbury v. Bank of Montreal ((1918) A.C. 626, at p.676)). The course of authority in this Court tends rather against such a wide view of the nature of the appeal."

In all the circumstances, it appears that the nature of an appeal to the Federal Court in its appellate jurisdiction is not in the nature of a rehearing. The Court has wide powers to ensure that injustice is not suffered and for that purpose may admit further evidence on the hearing of an appeal. In an appropriate case the Court may, in the light of fresh evidence, order a new trial; see Hoare v. The Queen, Federal Court of Australia, 31 March 1983, unreported. In an appropriate case the Court may, in the light of fresh evidence, refrain from exercising its appellate jurisdiction; cf. Dignan's case per Evatt J. at p.113. Boheto's case is an example where it would have been appropriate for the Privy Council to have refrained from exercising its appellate jurisdiction, even though leave to appeal had been granted. There the purchaser had been unable to obtain leave to defend the vendor's action for specific performance. The vendor had been given leave to enter judgment for specific performance. If the Privy Council had considered the proper construction of the Building Units Act in operation at the time of the hearing of the matter in the Supreme Court of Queensland and had come to the same conclusion as that of the High Court in Deming's case, assuming that was the basis of the judgments in the two hearings before the Supreme Court of Queensland, the Privy Council would have allowed the appeal and granted the purchaser leave to defend. It is obvious that when that hearing took place, the Building Units Act, as amended, would have been in operation and of necessity the purchaser would have had no defence to the vendor's claim for specific performance. Thus, the vendor would not be deprived of rights conferred upon it by the judgments of the Supreme Court of Queensland. If the Privy Council had come to a conclusion different to that of the High Court in Deming's case, assuming that was the basis of the judgments in the Supreme Court of Queensland, the Privy Council would have dismissed the appeal since there had been no error of law. The same result would have followed if leave to defend had been refused on factual material apart from the question of construction. Put another way, rights and liabilities between the parties arising under the unamended Building Units Act had merged in the judgment and the amendments to the Building Units Act could not have affected those rights and liabilities, unless the judgment had been set aside and the matter was then determined by way of rehearing. Even then, on the rehearing the same results would have followed.

The present case is the converse to the position in Boheto's case. In the present case the rights conferred upon the respondent by the unamended Building Units Act and the liabilities imposed upon the appellant by that Act had all merged in the judgment given on 14 December 1983. The position is analagous to that discussed by Dixon J. in Dignan's case at p.106:

"The doctrine of the common law is that a right conferred and a duty imposed by statute subsisted only while the statute remained in operation as a law. This doctrine appears to be applicable to subordinate legislation. When the regulation 'ceases to have effect' how can a liability which arises under it, and depends upon it alike for its origin and continuance remain enforceable? It is only because the regulation had 'effect' as a law that the liability could continue. The power to make regulations is not a mere discretionary authority to determine when and how the statute itself shall operate. It is not as if the Act of Parliament alone imposed a liability for failure to conform to an executive or administrative direction. The regulation is a real exercise of subordinate legislative authority. In my opinion, the result is that upon the disallowance of the regulation it can no longer be relied upon as a source of liability. Thus, after a regulation has been disallowed, no one is liable to conviction for an offence committed while it was in force. His liability ceases when the law is revoked that imposed it. But if he has already been convicted, then because his liability has merged in the conviction, it no longer depends upon the law under which it arose, and it does not lapse with the revocation of the law. The conviction has become the source of his liability for his offence, and the conviction continues in force because its operation does not depend upon the law creating the offence, but upon the authority belonging to a judgment or sentence of a competent Court."

If the Full Court allowed the appeal and ordered a retrial, the respondent's application for the return of the deposit, of necessity, would fail. She would be deprived of the rights conferred upon her by a judgment of the Court obtained without error of fact or of law. The Court should be reluctant to do that.

This case is not to be compared to a case where the trial court in applying a principle of law relied upon an authority which subsequently is overruled by a court having binding authority upon the trial court. In those circumstances the original judgment would have been given by error of law and an appeal court would order a new trial or, in an appropriate case, make orders itself. In the present case the amendments to the Building Units Act alter the position, but by deeming facts to have occurred which in reality have not occurred. To set aside a judgment of this court on that basis would be unjust. The Court should not do that.

JUDGE3

I have had the advantage of reading in draft form the judgment of Smithers, J. I agree with his reasons and concur in the orders he proposes. I would only wish to add two observations.

Although the question does not now arise because of the failure by the appellant to comply with the relevant Queensland statute, it should not be assumed, in my view, that apart altogether from any such statutory defence, this would have been a case where, given the circumstances in which the contract sued on was made and sought to be enforced, the discretionary relief of specific performance of the contract should be granted. Clearly,there is much force in the respondent's contention that, the statute apart, the circumstances of the making of the contract were such as to deny to the appellant that equitable relief. The recovery of the deposit is, of course, a different question (cf. Convevancing Act, 1919 (N.S.W.), s.55(2A)).

So far as concerns the retrospective operation of the amending legislation now sought to be relied upon by the appellant, it is to be noted that the amending legislation makes no reference, expressly at least, to the situation which has now arisen at the appellate level. It is clear enough that the amendment was intended to apply to proceedings at first instance, even if those proceedings had already been commenced. But it is a very different thing to suggest that such amending legislation was also intended to apply so as to, in effect, reverse a decision already properly arrived at by a judge at first instance from whom only an appeal stricto sensu, as distinct from an appeal by rehearing, lies. In my opinion, in order to construe amending legislation of the type now under consideration as applicable also at the appellate level, in an appeal in the strict sence, the most explicit language would be required, given the draconian result which would follow if such a construction were adopted; and no such language was employed in the instant case.