PERISH v C & M MICALEFF SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, SAMUELS and MCHUGH JJA 9 August 1988, 9 August 1988 [1988] NSWCA 112 KEY WORDS: DISTRICT COURT — PRACTICE — PREROGATIVE WRITS — WORDS & PHRASES DISTRICT COURT — statutory appeal to District Court from Poultry Farmers' Licensing Committee — poultry farmer's licence cancelled for non compliance with condition limiting hen numbers — non compliance not denied — appeal to District Court — claim for order for inspection of another poultry farmer's property — District Court judge refuses to make order — summons for leave to appeal to Court of Appeal — held: No appeal lies (1) Decision is not a "ruling, order, direction or decision" in an action as provided by s128(2A) District Court Act 1973. Fraser Credits Pty Limited v Osterberg-Olsen [1978] 1 NSWLR 121 applied; (2) Semble The proceedings on a statutory appeal are not an "action". Hudson v South Sydney Municipal Council (1981) 46 LGRA 128. Summons for leave to appeal therefore dismissed with costs. PRACTICE — District Court — order for inspection of property — whether extends to inspection of property of non parties — whether available in statutory appeal to District Court under Egg Industry Act 1983, s38 — whether "in an action" — observations of Kirby P and McHugh JA raising doubts about the validity of the Rule if it purports to apply to non parties (McHugh JA) and about its application to such an appeal (Kirby P) — Observations on the need, if the Rule is valid and applies, to exercise the discretion provided by it with due regard to the privacy and other rights of the subject and to the issues in controversy in the proceedings before the District Court. PREROGATIVE WRITS — Purported appeal from District Court — no appeal lies — whether prerogative relief available Glenvill Homes Pty Ltd v Builders Licensing Board [1981] 2 NSWLR 608; Coles & Ors v Burke & Anor (1987) 10 NSWLR 429 considered — Unrepresented litigant challenge to validity of Cancellation of Poultry farmer's licence — whether tainted by fraud held: (1) No jurisdictional error of law on the part of trial judge shown; (2) Accordingly, no reason to allow adjournment to permit enlargement of relief claimed in summons. WORDS & PHRASES — "action". Common Law Procedure Act 1899, $104 District Court Act, 1973, s128(2A), s161. Egg Industry Act, 1983, s37, s38. Supreme Court Rules, Pt25, Rule 8. District Court Rules, Pt22, Rule 7. ORDER Summons dismissed with costs. Kirby P This matter came before the Court as a summons for leave to appeal. Normally, the Court does not give reasons, or extensive reasons, for dismissing such summonses. However, as the matter developed in an unusual way (as I shall explain) and as the claimant is unrepresented and has put his arguments forcefully and persuasively to the Court, I believe that in this case some reasons should be given to indicate why the Court is of the opinion that the summons should be dismissed. Cancellation of a poultry farmer's licence The claimant is a poultry farmer. He was licensed to carry on that occupation pursuant to the Egg Industry Act 1983 (the Act). Initially, his licence was subject to a condition under the Act limiting him to a hen quota of 12,000 hens. This 2 UNREPORTED JUDGMENTS quota was subsequently reduced to 7,000 hens. He does not dispute that at relevant times he had more than that number of hens on his property. However he claims that exceeding the quota is common in the poultry industry. He asserts that this is because of fraud and misconduct on the part of various officers performing functions under the Act. Essentially, he complains that he has been singled out and treated unfairly by the authorities administering the Act. The legal issue before the Court arises because the Poultry Farmer Licensing Committee, (the Committee) which is the first opponent in these proceedings, took steps to order the cancellation of the claimant's licence. This it did pursuant to s37(1)(b) of the Act. That section provides; 37(1) The Licensing Committee may cancel a licence - (b) for a breach of a condition or restriction to which the licence is subject. As [have said, the claimant's licence was subject to a condition or a restriction relating to the number of hens which he could have. For present purposes he does not dispute that he was in breach of that condition. Such a breach would therefore appear to authorize the cancellation of the licence. There is a statutory appeal provided for from decisions of the Committee. This lies pursuant to s38 of the Act. The claimant exercised the right of appeal provided by that section. He appealed to the District Court. The proceedings came before a number of judges of that court, including Judges Madgwick and Phelan. They have not yet been concluded. Application for order of inspection In due course, an application was brought by the claimant before Judge Davidson for relief under Pt23 r 7 of the District Court Rules. The relevant provisions of the Rules provide; 23.7.1. The court may for the purpose of enabling the proper determination of any matter in question in an action, make orders on terms that - (a) the inspection of any property; (b) the taking of samples of any property (c) the making of any observation of any property; (c) the trying of any experiment at or with any property; or (e) the observation of any process. 23.7.2. An order under sub-rule (1) may authorise any person to enter any land or do any other thing for the purpose of getting access to the property. 23.7.3. A party applying for an order under this rule shall so far as practical serve notice of a motion on each person who would be affected by the order if made. 23.7.4. In this rule "property" includes any land and any document or other chattel, whether in the ownership, possession, custody or power of a party or not. Notice of the motion which came before Judge Davidson was given to the parties principally the subject of it, namely C & M Micaleff, who are poultry farmers at Luddenham. Notice was also given to the Committee. Both appeared to contest the making of the order. I shall assume, without deciding, that the Rules are valid to provide relief of the kind sought by the appellant in the present case. It will be observed that the powers conferred on the District Court in the terms of the Rules are extensive powers. However, they are powers to be exercised for lawful purposes and not for purposes extraneous to any issue which is before that Court as the Rules provide. Furthermore, as Judge Davidson himself observed, they are powers which, if exercised, can involve the intrusion into the private property of a person and, to URJ PERISH v C & M MICALEFF (Kirby P) 3 some extent, interference in the business and ordinary life of that person. Accordingly, by ordinary principles, they are powers to be exercised with care and with due respect for the rights of persons who would be the subject of them. 5 Refusal of the claim for an order of inspection Put generally, the case which the claimant wished to bring before the District Court on his appeal from the cancellation of his licence was that Mr and Mrs Micaleff had approximately 130,000 hens on their property although their quota was for no more than 74,000 hens. The claimant asserted that he could prove this 10 disparity by reference to the feed intake of the Micaleffs for the purpose of feeding their hens. He asserted that, by a calculation derived from that intake, it would be possible to prove to the satisfaction of the Court that the Micaleffs had many more hens than were provided for by their quota. It appears that he contends that in some way that this would show fraud and misconduct on the part of officers appointed under the Act and that, in some fashion, such fraud and misconduct had caused the decision of the Committee concerning his licence to miscarry. Upon this basis he sought to argue that it was not a decision at all or was made for some improper purpose, such as to remove him from the industry. 20 _Itis important to remember that what came before Judge Davidson was limited to the issue provided by the motion under Pt23 r 7. DCR. His Honour heard the application He dismissed it. In giving his reasons his Honour said this: Mr Perish informed me, in effect, that he proposes, at the appeal, to launch an attack on the good faith of the defendant, the respondents in this application, and its inspectors, 25 __ by showing that other poultry farmers have exceeded quotas under the legislation, and that they have not been dealt with for breaching their licence. I do not suggest that this is a complete exposition of the case which Mr. Perish states that he proposes to set up at the appeal, but that, as I understand it, is the essence of it. 30 Turning to the evidence upon which the order had been sought his Honour said this: In my opinion [the] credit of the defendant's witnesses is the only conceivable issue to which the order sought might to on the material before me. I conclude that the issue arising at all (sic) is somewhat remote, and furthermore, that even if it does arise, Mr Perish has not indicated to me, with any sufficient degree of precision, how it is that an 35 excess of hens over the Micaleff quota might provide [a] basis for such an attack or assist him in it. In my opinion, the order sought is too remote from this issue to justify it being made. Furthermore, it seems to me that, in exercising my discretion to make such an order, I should bear in mind the invasion to the Micaleff 's property and interference with the 40 conduct of their business, which might well ensue. Summons for leave to appeal is misconceived As I have said, the process which initially came before this Court was a summons for leave to appeal. Two objections were raised by the opponents to this 45 process. The first was that an appeal would not arise in this case because, under s128(2)(a) of the District Court Act 1973, an appeal only arises, relevantly, in the case of an "action" before the District Court. This Court has held in Hudson v South Sydney Municipal Council (1981) 46 LGRA 128 that statutory appeals to the District Court are not an "action" for that purpose. Drawing upon that 50 decision, the opponents contended that the summons for leave to appeal was misconceived as no appeal lay. 4 UNREPORTED JUDGMENTS Alternatively, the opponents contended that the decision of Judge Davidson, the subject of the challenge, was not a "ruling, order, direction or decision" in an action. In this respect they relied upon the decision of the Court in Fraser Credits Pty Limited v Osterberg-Olsen [1978] 1 NSWLR 121. Fraser Credits has been applied many times in this Court. See eg Seymour v Sheriman & Ors (unreported) CA. 15 November 1983; Paraharalambous v Champion Spark Plus Company (Aust) Pty Limited (unreported) CA. 6 December 1985; Rogers & Anor v The Council of the Shire of Eurobodalla (unreported) CA. 11 August 1987; Stuart Earle (Real Estate) Pty Limited v Bains & Anor (unreported) CA. 25 March 1988; Council of the City of Sydney v Ex-Servicemen's Car Laundry Pty Limited (Unreported) CA. 16 May 1988. Application has been made, which the Court has granted, for leave to reargue the correctness of Fraser Credits. That application awaits hearing. For the time being Fraser Credits states the law to be applied. It is binding on me. It excludes an appeal from a decision of the kind which Judge Davidson made in the present instance. For that reason, and also possibly because the decision was not in an "action", the summons for leave to appeal was misconceived. Alternative foreshadowed claim for prerogative relief The claimant ultimately conceded that his summons for leave to appeal was misconceived. However, he then endeavoured to present the application in a different way. He referred the Court to the decision in Glenvill Homes Pty Limited v Builders Licensing Board [1981] 2 NSWLR 608. See also now Coles & Ors v Burke and Anor (1987) 10 NSWLR 429. He foreshadowed that he wished to seek some form of prerogative relief against the District Court for the purpose of securing an order of the kind which he had sought from Judge Davidson. The form of the prerogative relief was never finally stated. Nor were the grounds of it ever finally adumbrated. However, having regard to what was said in Glenvill Homes, the Court proceeded, upon the assumption that such relief was available, to consider whether some jurisdictional error of law could be pointed to in the decision of judge Davidson. Had such an error appeared, the Court would then have been in a position to consider whether it should, notwithstanding the technical defects and inadequacy of the claimant's process, provide an adjournment for the purpose of allowing him to get his claim for relief into proper form. Obviously, such relief could not be given today. Notice had not been given to the District Court which would be a proper respondent to a claim for relief, prerogative in nature. However, that was not a reason why the Court could not turn to consider the substance of the matter. This it did. Reasons why such relief is unavailable There are at least four, and possibly more, reasons why, even if the technical omissions of process were overcome, the relief which the claimant seeks would not be available. The first is that the essential complaint of the claimant appears to be directed to the reduction of his quota from 12,000 to 7,000 hens. That complaint is, as I understand his arguments, addressed to the contention that the Committee has exercised its power for an improper purpose and thus has not exercised its power at all as the law provides. The difficulty for the claimant in the present case is that such reduction is not an issue in his appeal to the District Court. It was to that appeal that the motion before Judge Davidson was ancillary. The only issue in the appeal is the challenge to the cancellation of a licence under s37. Therefore, the URJ PERISH v C & M MICALEFF (Kirby P) 5 objection to the reduction of the quota would not appear to arise in such an appeal as an issue relevant to the matters before the District Court. Secondly, the contention of the claimant that there is a widespread system of fraud and misconduct in the egg industry, even if correct, would appear to relate to the conduct of inspectors or other officers operating under the Act. Their conduct is not that of the Committee. It is the Committee which made the order under s37 of the Act which is the subject of the appeal to the District Court. I say "even if correct" because it must be stressed that, in the nature of these proceedings, this Court has not had to concern itself with the factual matters which the claimant has raised. Nor has the Court had to decide, one way or the other, the claimant's complaints whether against Mr and Mrs Micaleff or other poultry farmers. There is a real question in the circumstances of this case whether, under s37(1)(b) of the Act, the Committee would have had any power other than to impose a cancellation of the claimant's licence, for breach of a condition or restriction to which the licence was subject and which the claimant did not deny. That matter has not been fully argued. It is therefore inappropriate to state any final conclusion about that matter. However, it is at least open to argument that that would have been the statutory duty of the Committee, to cancel the licence, having regard to the admitted fact that the complainant had, in a substantial way, breached a condition of the licence. Thirdly, the appeal to the District Court appears to be an appeal by way of rehearing. See eg Spurway Constructions (Sydney) Pty Limited v Builders' Licensing Board (1976) 135 CLR 616 and cf Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations & Anor (1985) 3 NSWLR 685, 690ff. So it was conceded both by the Committee and by the Micaleffs. However, if it is a rehearing, the matters which caused the Committee to cancel a licence, even if those claimed by the claimant, would not be relevant to the exercise by the District Court of its discretion on the appeal. If the appeal is by way of rehearing, the District Court will proceed to its own conclusion unaffected by any irrelevant or extraneous matters which the claimant alleges to have affected the Committee. Finally, the challenge to Judge Davidson's order is a challenge to an order which his Honour made in the course of dealing with a discretionary matter of practice and procedure The limitations applicable to appeals against such orders are well known. They have been stated in many cases. See eg House v The King (1936) 55 CLR 499; In Re The Will of Gilbert (1946) SR (NSW) 318322; and Norbis v Norbis (1986) 161 CLR 513. The reasons for restraint in appeals against such orders explain the difficulty which the claimant faces in showing jurisdictional error on the face of the record. Such errors will be hard to specify where the decision of the judge involves the exercise of a discretion which leaves a great deal to the Judge's decision. On the face of the record which is before us, if it may be assumed that that record includes the reasons of Judge Davidson, there is no evident error which would attract our jurisdiction to offer relief, prerogative in nature. Before leaving this matter I should mention that the opponents raised an additional objection to the process of the claimant below. They point out that Pt22 r 7 of the District Court Rules applies only to a matter in question in an "action". They contend that the proceedings before the District Court are not an "action" within the meaning of that rule. I am not sure that this is correct. However, in any case it has not been fully argued. It is not necessary for this 6 UNREPORTED JUDGMENTS question to be determined. It is possible that "action" in the rule has a wider meaning than an "action" in the Act for the purpose of appeals. This is a matter which can be left to another time. Conclusion and orders The result is that it is my opinion that the summons for leave to appeal must be dismissed. On the present authority of the Court it is misconceived. No appeal lies. Insofar as the matter before the Court today involved an application to amend that summons to permit of wider form of relief, prerogative in nature, no basis has been made out upon which to adjourn the proceedings to permit such relief to be claimed. Accordingly, in my opinion the summons should be dismissed with costs. Necessarily this conclusion does not decide the principal matter which is of concern to the claimant. This is the validity of the reduction of his hen quota which, he asserts, has never been validly made because the purported decision was tainted by fraud or other vitiating cause. There are doubtless ways by which the claimant could bring his contentions before the courts for review. But this proceeding is not the proper vehicle to do so. Samuels JA I am of the same opinion. I add only this the appeal for which s38 of the Egg Industry Act 1983 provides (and this is not in contest) is a rehearing in the sense of a fresh hearing. That is to say it is more like a first instance proceeding than an appeal in the usual sense. That being so, I think that any appellate court should be exceptionally slow to review or interfere with discretionary orders made by a judge of the court which will hear that proceeding for the purpose of getting the proceeding ready for trial or settling questions ancillary to the determination of the issues. In any case, I can see no error of law in the judgment of Judge Davidson and I think, despite Mr. Perish's excellent argument, that he was unable to point to any. The problem is as the President has indicated, that Mr Perish's real complaint is about the conduct of the Poultry Farmers Licensing Committee, first, in reducing his quota and then in cancelling his licence. What the situation may be about the number of birds on the farm of Mr and Mrs Micaleff has only the most peripheral connection with that conduct and with those decisions. It may be, and I express no view about this, that there is some remedy open if Mr. Perish really has some prima facie complaint of substance against the Licensing Committee. He may for example be able to be one of the first to invoke the powers of the Independent Commission Against Corruption Act 1988 if he is able to allege bias or partiality against the Licensing Committee. However, for the reasons the President has given, I think there is no relief available to him in this court. McHugh JA I agree that the summons should be dismissed. Mr Perish frankly conceded that there was no right of appeal from the decision of Judge Davidson. That concession was made in accordance with a well known and now long line of authority. I also agree that his application to amend the summons to seek relief in the nature of an order in certiorari must fail. Nothing in his Honour's judgment indicates any jurisdictional error of law which is a condition of the grant of an order of in the nature of certiorari. The learned trial judge proceeded upon the basis that he had power to make an order under Pt23 r 7 of the District Court Rules authorising a person to enter the property of a stranger to the action. We have heard no argument on the matter, but URJ PERISH v C & M MICALEFF (McHugh JA) 7 I have grave doubts whether 17 is a valid rule insofar as it purports to authorise entry into the premises of a person not a party to the action. Pt23 r 7 appears to be made pursuant to s161 of the District Court Act 1973. Prima facie, a rule making power expressed in general terms would not authorise the enactment of 5 arule which interfered with fundamental rights of property: cf Ex p Grinham; Re Sneddon & Anor [1959] 61 SR (NSW) 862 at 870-871, 874-875. There is no comparison, in my view, between Pt23 r 7 and s104 of the old Common Law Procedure Act 1899 or Pt25 r 8 of the Supreme Court Rules. The latter rule was authorised by the statute itself, having been part of the schedule which was 10 enacted under s124 at the time of the passing of the Act. In my view a serious question arises as to whether Pt23 r 7 does authorise an entry on to property of a third party. But even if it does, it seems to me that prima facie the rule had no application in the present case. The proceedings in the main action, that is to say, the appeal under s38 of the Egg Industry Act 1983, was not 15 an "action" within the meaning of R7 Pt 23. Accordingly, I agree with the orders proposed by the learned President. KIRBY P. The order of the court, accordingly, is that the summons is dismissed with costs. COUNSEL: Claimant: IN PERSON 25 1st Opponent: P F ESLER 2nd Opponent: C M SIMPSON SOLICITORS: 30 Claimant: IN PERSON 1st Opponent: LACEY & CO 2nd Opponent: WESTGARTH BALDICK40