Wentworth v Graham

[2002] NSWCA 397

Reported Decision: (2002) 55 NSWLR 638

New South Wales

Court of Appeal

CITATION:	Wentworth v Graham & Anor [2002] NSWCA 397
FILE NUMBER(S):	CA 40277/00
HEARING DATE(S):	30/09/2002
JUDGMENT DATE:	30 September 2002
PARTIES :	Katherine Wentworth (Applicant) Geoffrey Graham (First Respondent) William Charles Wentworth (Second Respondent)
JUDGMENT OF:	Santow JA at 1

COUNSEL:	Ms Wentworth (Applicant in person) ex parte
SOLICITORS:
CATCHWORDS:	PRACTICE and PROCEDURE - Court of Appeal - Review of Registrar's decision - whether Pt 61 rr3 and 4 Supreme Court Rules is inconsistent with s46(4) of the Supreme Court Act 1970.
LEGISLATION CITED:	Supreme Court Act 1970 s46(1), (2), (4); s75A; s121(3) Supreme Court Rules Pt51 r58(1); Pt 61 rr3 and 4
CASES CITED:	Emmett v Hornsby Shire Council (SCNSW Court of Appeal, 21 March 2002, unreported) Strata Consolidated (Australia) Pty Ltd v Bradshaw ([2000] NSWCA 225) Westpac Banking Corporation v Abemond Pty Ltd (SCNSW Santow J, 28 October 1994, unreported)
DECISION:	I am satisfied that there is no impediment under s46(4) or otherwise in my exercising jurisdiction to review the Registrar's decision under Pt 61 rr3 and 4 of the Supreme Court Rules, in a case such as this, which I am satisfied comes within the ambit of that Rule.

CA 40277/00

SANTOW JA

30 SEPTEMBER 2002
(revised 6.12.2002)

KATHERINE WENTWORTH v GEOFFREY GRAHAM and Anor

Judgment – ex tempore

1 SANTOW JA: At the outset of this application, Ms Wentworth, who appears ex parte, properly raised a question concerning the jurisdiction of a single judge of this Court to review the decision of a Registrar pursuant to Pt 61 r4 of the Supreme Court Rules. The question concerned whether that provision, being part of the Supreme Court Rules, was inconsistent with the jurisdiction of the Court of Appeal under s46(4) of the Supreme Court Act 1970 (“the Act”) to “discharge or vary a judgment given by a judge of appeal.”

2 The way in which s46(4) of the Act may come to apply arises pursuant to Pt51 r58(1) of the Supreme Court Rules. Under that subrule “the Registrar may exercise the powers of a Judge of Appeal under s46(1) and (2) of the Act.”

3 On the premise that the Registrar in the present case is exercising the powers of a Judge of Appeal under s46(1) or (2) of the Supreme Court Act, it would follow that the Court of Appeal under s46(4) has jurisdiction to discharge or vary a “judgment” given by a Registrar, or an order made or direction given by a Registrar.

4 Part 61 rr3 and 4 are also upon their terms capable of application on the basis that where the Registrar does “give a direction or certificate or make an order or decision or does any other act in any proceedings,” “the Court may...review the direction, certificate, order, decision or act and may make such order by way of confirmation, variation, discharge or otherwise as the Court thinks fit.” I quote Pt 61 rr3 and 4 below.

3. Review


(1) Where a registrar gives a direction or certificate or makes an order or decision or does any other act in any proceedings, the Court may, on motion by any party to the proceedings or application as the case may be, review the direction, certificate, order, decision or act and may make such order by way of confirmation, variation, discharge or otherwise as the Court thinks fit.

(2) For the purpose of this rule, the material date is the date of the direction, certificate, order, decision or act to be reviewed.

(3) Notice of the motion shall be filed within 28 days after the material date or within such extended time as the registrar or the Court may fix.

(4) The registrar may extend time under subrule (3) only within 28 days after the material date or on a notice of motion filed within 28 days after the material date.

(5) The Court may extend time under subrule (3) at any time.

(6) This rule does not apply to:

(a) an order to which Part 80 rule 23A (1) or Part 80A rule 21 (1) or rule 16.1 of the Corporations Law Rules (which relate to an order for the winding up of a company) applies, or
(b) a direction, order, decision or other Act of a registrar in relation to the functions of the Court under the Mutual Recognition Act or under the Trans-Tasman Mutual Recognition Act.
4. Court of Appeal

The powers of the Court under this Part may, in respect of the registrar of the Court of Appeal, be exercised by a Judge of Appeal. “

5 It will be apparent that under Pt 61 r4 the power of “review” is exercisable by a single Judge of Appeal, whereas the power to “discharge or vary” under s46(4) contemplates the Court of Appeal and thus not a single judge of it.

6 Any apparent inconsistency between the two regimes, which if it existed would necessarily require that the Act prevailed over the rules, is resolved when the following is appreciated. The nature of the power under s46(4) of the Act is distinct from the power to review the determinations of Masters and Registrars conferred by Pt 61 r3 (and, be it noted, by s121(3) of the Act, to the extent the latter needs to be called in aid).

7 Ritchie’s Supreme Court Practice explains that:

“the applicant for review must show that there has been an error of principle in the exercise of the power - or that the decision was plainly wrong. This construction of the power derives either from the legislative context ( Wentworth v Wentworth ) [1994] (35 NSWLR 726 per Mahoney and Powell JJA); or from the basic proposition that an application to discharge or vary is essentially a matter of practice and procedure - in relation to which the restrictive principles set out in In Re the Will of Gilbert [1946] 46 SR(NSW) 318 will apply: Wentworth v Wentworth [1994] (35 NSWLR 726).”

8 On the other hand, when it comes to the power expressly termed a power of review under Pt 61 r3, the annotations in Ritchie correctly point out that “the power to review is not an appeal and is not subject to the limitations expressed in s75A of the Act,” it following “that it is not necessary to demonstrate that there has been an error of principle in the order under review.”

9 Westpac Banking Corporation v Abemond Pty Ltd (SCNSW Santow J, 28 October 1994, unreported) points out that the consideration that the Registrar’s decision involves a matter of practice and procedure remains a relevant consideration in the exercise of the power of review. Accordingly, it is proper for the Court to exhibit a natural inhibition against the unrestrained substitution of the reviewing court’s views in a matter of practice and procedure for those of the original tribunal.

10 It follows from the above that these distinct powers, or the jurisdiction thereby conferred, are to be understood as co-ordinate or concurrent rather than inconsistent.

11 Two recent decisions exemplify that proposition. In the first, Emmett v Hornsby Shire Council (SCNSW Court of Appeal, 21 March 2002, unreported), was an instance of a single Judge of the Court of Appeal (Sheller JA) reviewing the Registrar’s decision to dismiss an application for want of prosecution. It can be taken that the exercise of power or jurisdiction in that case was pursuant to Pt 61 r3 of the Supreme Court Rules.

12 In an earlier case, Strata Consolidated (Australia) Pty Ltd v Bradshaw ([2000] NSWCA 225), a three member Bench of the Court of Appeal comprising Sheller, Beazley and Heydon JJA reviewed a Registrar’s decision regarding an application for security for costs, explicitly doing so under s46(4) of the Act.

13 While neither case, nor it appears from a brief check any other case, expressly enunciates the proposition that these are distinct and concurrent powers of review, the existence of those cases illustrates and exemplifies that proposition in daily practice, insofar as determinations by a Registrar fall to be considered for discharge, variation, or review.

14 I am satisfied that there is no impediment under s46(4) or otherwise in my exercising jurisdiction to review the Registrar’s decision under Pt 61 rr3 and 4 of the Supreme Court Rules, in a case such as this, which I am satisfied comes within the ambit of that Rule.

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