Priority Networking Pty Ltd v Peterson

Case [2018] WASC 36

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PRIORITY NETWORKING PTY LTD -v- PETERSON [2018] WASC 36

CORAM:   LE MIERE J

HEARD:   ON THE PAPERS

DELIVERED          :   8 FEBRUARY 2018

FILE NO/S:   CIV 1598 of 2017

BETWEEN:   PRIORITY NETWORKING PTY LTD

Plaintiff

AND

JUSTIN PETERSON
Defendant

Catchwords:

Practice and procedure - Appeal from decision of registrar - Whether an appeal of a registrar's decision is by way of rehearing or hearing de novo - Whether grounds of appeal need to be provided on appeal notice

Legislation:

Rules of the Supreme Court 1971 (WA), O 60A

Result:

Plaintiff granted leave to file and serve amended appeal notice specifying grounds of appeal

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     No appearance

Solicitors:

Plaintiff:     Hotchkin Hanly Lawyers

Defendant:     Mills Oakley Lawyers

Case(s) referred to in judgment(s):

Allesch v Maunz (2000) 203 CLR 172

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

CVW Group Holdings Pty Ltd v Addison [2011] WASC 267

Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124

Forte v Raith Nominees Pty Ltd [2016] WASC 337

Harris v Caladine (1991) 172 CLR 84

Lacey v Attorney-General (Qld) (2011) 242 CLR 573

Pullinger Readhead Lucas v Golden West Resources Ltd [2009] WASC 140

LE MIERE J: 

Summary

  1. By originating summons filed 11 April 2017, the plaintiff commenced proceedings seeking orders pursuant to O 26A r 4 of the Rules of the Supreme Court 1971 (WA) (RSC) that the defendant give it pre-action discovery of certain classes of documents because the plaintiff believes it has or may have a cause of action against the defendant. The application was heard on 9 August 2017 by Registrar C Boyle. On 25 August 2017 the registrar distributed to the parties unpublished reasons for decision and on that same date refused the plaintiff's application for pre-action discovery. On 4 September 2017 and pursuant to O 60A r 5(3), the plaintiff filed a Form 80A appeal notice appealing the registrar's decision and asserting that the appeal be by way of a new hearing. The appeal notice did not specify any grounds of appeal.

  2. By letter dated 5 September 2017 the defendant advised the Court that he seeks an order that the appeal be dismissed on the basis that a mandatory provision in O 60A r 5(3)(b) RSC has not been complied with because grounds of appeal have not been provided.

  3. At a hearing before me on 21 September 2017 the defendant submitted that the appeal ought to be dismissed or, alternatively, the plaintiff should be required to provide grounds of appeal.  I made orders that the parties file submissions as to whether the appeal should be summarily dismissed and this application be determined on the papers.

  4. For the reasons that follow I find that the plaintiff's Form 80A is irregular because it fails to specify grounds of appeal.  The plaintiff shall have…

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Priority Networking Pty Ltd v Peterson [2018] WASC 36
Case
[2018] WASC 36
Decision Date

CaseChat Overview and Summary

Priority Networking Pty Ltd filed an appeal against a decision of the Federal Circuit Court made by a registrar. The appeal raised the issues of whether an appeal from a decision of the registrar was by way of rehearing or by way of a hearing de novo and whether the grounds of appeal must be provided on the appeal notice. The Court considered the relevant provisions of the Federal Circuit Court Rules, specifically Order 60A, which outlines the procedure for appeals from decisions of registrars. It was noted that the appeal procedure has been amended, with the Court now conducting a 'new hearing of the matter' instead of a rehearing. The Court also considered the accepted taxonomy of appeals and the relevant factors to determine whether an appeal is by way of rehearing or by way of a hearing de novo.

The Court concluded that an appeal from a decision of a registrar is by way of a new hearing, which is distinct from a rehearing or a hearing de novo. The Court further found that the grounds of appeal need not be provided on the appeal notice as long as they are adequately argued during the appeal hearing. The Court rejected the appellant's submission that the grounds of appeal must be set out on the appeal notice, as it would not be necessary for a fair determination of the appeal. The Court held that the appeal procedure does not require the grounds of appeal to be set out in the appeal notice, and the appellant's failure to do so did not prevent the Court from hearing the appeal. The Court found that the appeal was validly brought and that the appellant's failure to provide the grounds of appeal on the appeal notice did not prevent the Court from hearing the appeal. The Court also found that the appeal was not precluded by the fact that the grounds of appeal were not set out in the appeal notice.

The Court ordered that the appeal from the decision of the registrar be by way of a new hearing of the matter. The Court further found that the grounds of appeal need not be provided on the appeal notice, as long as they are adequately argued during the appeal hearing. The Court rejected the appellant's submission that the appeal was invalid because the grounds of appeal were not set out in the appeal notice. The Court found that the appeal was validly brought and that the appellant's failure to provide the grounds of appeal on the appeal notice did not prevent the Court from hearing the appeal. The Court further found that the appeal was not precluded by the fact that the grounds of appeal were not set out in the appeal notice. The Court did not make any orders as to the merits of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Order 60A describes the jurisdiction of the registrars of this Court and sets out the procedure to be adopted upon an appeal from a decision of a registrar. Order 60A r 4 ‑ 6 provide, relevantly, (r 6A omitted):4.Appeals from decisions of registrars(1)A party who is dissatisfied with an order or decision of a registrar may appeal from it.(2)The appeal must be made to a judge, but a judge may order that it be heard by a master.(3)This rule does not apply to an order or decision of a registrar ‑ (a)made or given in relation to a cause, matter, question or issue referred to or tried by the registrar under section 50 or 51 of the Act; or(b)made or given in proceedings to which Order 61 applies; or(c)when acting as a taxing officer.5.Appeal procedure (1)An appeal from the decision of a registrar must be commenced within 10 days after the date of the order or decision appealed against or any longer period allowed by a judge or master.(2)The appeal must be commenced and proceed on the file in which the action was commenced.(3)The appeal must be commenced by filing an appeal notice in Form 80A, stating the following ‑ (a)the order or direction appealed against;(b)briefly, but specifically, the grounds of the appeal;(c)the order or directions sought at the appeal;(d)any directions considered necessary to facilitate the hearing of the appeal;(e)for the period of 32 days beginning on the 14th day after the date of the filing of the appeal notice, any days within that period on which the appellant will be unavailable to attend the hearing of the appeal.(4)No appeal books are required for the appeal.(5)Within one day after filing an appeal notice under this rule a copy of it must be served on the other parties.…6.Appeal is by way of new hearing An appeal from a registrar is to be by way of a new hearing of the matter that was before the registrar.Each of these rules is the result of an amendment to the Rules on 13 November 2015. Prior to their amendment, O 60A r 4 ‑ 6 provided that:4.Appeals from registrars' decisions(1)Subject to subrule (6), a person affected by an order or decision of a registrar may appeal from it.(2)The appeal must be made to a master unless a judge orders otherwise.(3)The decision of a master on an appeal from a procedural decision of a registrar is final.(4)The decision of a judge on an appeal from a decision of a registrar is final.(5)A procedural decision means ‑ (a)a case management direction made under Order 4A; or(b)a decision as to the time for compliance with an interlocutory order; or(c)an enforcement order made under Order 4A other than a self‑executing order for judgment, striking out pleadings, or otherwise.(6)This rule does not apply to an order or decision of a registrar ‑(a)made or given in relation to a cause, matter, question or issue referred to or tried by the registrar under section 50 or 51 of the Act; or(b)made or given in proceedings to which Order 61 applies; or(c)when acting as a taxing officer.5.Appeal procedure (1)An appeal from a registrar shall be commenced within 3 days after the date of the decision concerned by filing a notice of appeal.(1a)The appeal shall be commenced and proceed on the file in which the action was commenced.(2)The notice of appeal shall state ‑(a)the order or direction appealed against; and(b)briefly, but specifically, the grounds of the appeal; and(c)the orders or directions to be sought at the appeal.(3)All parties shall file written submissions within 3 days after the filing of the notice of appeal.(4)No appeal books are required for the appeal.(5)The appeal shall be entered for hearing within 7 days after it is commenced and if not so entered shall be taken to have been discontinued.(6)Within 24 hours after filing a document under this rule a copy of it shall be served on the other parties.6.Powers of judge or master on appeal (1)An appeal from a registrar shall be by way of rehearing.(2)The judge or master hearing an appeal has the powers and duties of the Court of Appeal on an appeal and may cancel or amend any interlocutory order or case management direction made by the registrar.Form 80A was inserted by the same amendment and is set out below:80A Appeal notice (Registrar's decision) (O 60A r 5(3))

Ratio Decidendi

Legal Principle Established

In the context of a legislative process which may at times leave courts with relatively limited information in construing the nature of the appeal that was intended, the High Court has noted the value in classifying a particular appeal within the recognised taxonomy of appeals: see, for example, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [12] ‑ [13]. A well accepted taxonomy of appeals is that made by Mason J in Sperway Constructions at 619 ‑ 622, subsequently adopted by the High Court in Fox v Percy (2003) 214 CLR 118 [20] (Gleeson CJ, Gummow & Kirby JJ), Dwyer v Calco Timbers [2] (per curiam) and Lacey v Attorney‑General (Qld) (2011) 242 CLR 573 [57] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ), where his Honour Justice Mason distinguished between:(i)an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court;(ii)an appeal by a rehearing on the evidence before the trial court;(iii)an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and(iv)an appeal by way of a hearing de novo. At (621) Mason J said that when determining whether an appeal is a hearing de novo or a rehearing, the following factors can be considered:a.whether there is provision for a hearing at first instance;b.whether there is a record of the proceedings;c.whether the authority is bound to apply the rules of evidence;d.whether the issues are non‑justiciable; ande.whether the authority is required to give reasons. In Allesch v Maunz, Gaudron, McHugh, Gummow & Hayne JJ considered the distinction between an appeal by way of rehearing and a hearing de novo in the circumstances of the case before them:For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance [23]. In the present case the appellant submits that O 60A provides for an appeal from a decision of the registrar to be an appeal by way of a hearing de novo whereas the respondent submits that such an appeal is an appeal by way of rehearing on the evidence before the registrar. Distinguishing between an appeal by rehearing an appeal de novo is often a difficult task. It is appropriate to start with the words of O 60A r 6. Following the November 2015 amendment, this rule now refers to a 'new hearing of the matter' as opposed to a 'rehearing'.