New South Wales Supreme Court CITATION : KLEWER v WALTON [2003] NSWSC 113 HEARING DATE(S) : 24 February 2003 JUDGMENT DATE : 6 March 2003 JUDGMENT OF : Levine J DECISION : (a) I dismiss the Notice of Motion,; (b) I order the plaintiff to pay the defendant's costs. CATCHWORDS : Appeal from Master - competence - Justices Act 1902 Part 5 appeal referred to Master - appeal by leave to Court of Appeal Justices Act 1902 ss104, 109 LEGISLATION CITED : Supreme Court Act 1970 ss101, 104 Supreme Court Rules Pt 60 r 10, r 17, 11 Schedule D Part 3 paragraphs 4, 5, 19-21 CASES CITED : Baldry v Jackson [1976] 2 NSWLR 415 Blake v Norris (1990) 20 NSWLR 300 LUCY KLEWER (Plaintiff) PARTIES : v IAN WALTON (Defendant) FILE NUMBER(S) : SC 10266 OF 2002 Plaintiff - in person COUNSEL : A Diethelm (Defendant) SOLICITORS : Hannigans Solicitors (Defendant) - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JUSTICE DAVID LEVINE Date 10266 OF 2002 LUCY KLEWER (Plaintiff) v IAN WALTON (Defendant) JUDGMENT (Appeal from Master – competence – Justices Act 1902 Part 5 appeal referred to Master – appeal by leave to Court of Appeal) 1 The plaintiff, who appears in person, by a Notice of Motion filed on 12 November 2002 seeks the following orders: 1 The order of Master Harrison of 6 September 2002 in the Common Law Division in the Supreme Court in Sydney be set aside. 2 That the matter be reheard before a judge in the same Division. 2 The matter with which Master Harrison was concerned was an appeal pursuant to s104 in Part 5, of the Justices Act 1902. That appeal was initiated consequent upon certain private criminal prosecutions brought by the plaintiff against the defendant having been dismissed in the Local Court at Coffs Harbour. The learned Master dismissed that appeal and summons: Klewer v Walton [2002] NSWSC 809. 3 It is to be observed, as the Master herself notes, that the s104 appeal was allocated to her for hearing by the list Judge. 4 Appeals under Part 5 of the Justices Act are often heard by Judges of the Common Law Division: see, for example, Carr v Neill [1999] NSWSC 1263 (Sully J); Pace v Read [2000] NSWSC 823 (O'Keefe J). 5 A threshold issue arose: the defendant moved the Court that the motion be dismissed on the basis that an appeal from a Master to a Judge of this Division is incompetent and that the appropriate appellate mechanism provides for an appeal by leave to the Court of Appeal. It is further to be observed that Ms Klewer applied to the Court of Appeal for an extension of time in which to institute an appeal to that Court from the decision of the Master, but that Registrar Schell refused that application. 6 Mr Diethelm of counsel for the defendant took me along the following legislative pathway. 7 S101(2)(h) of the Supreme Court Act 1970 states: 101(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from: … (h) an order of the Court in a Division on an appeal under Part 5 of the Justices Act 1902. 8 S104 states: 104 Subject to the rules, an appeal shall not lie to the Court of Appeal from any decision, judgment, order, opinion, direction or determination of the Court in a Division constituted by a master, registrar or other officer . 9 SCR Pt 60 r 10 states: 60.10. An appeal shall lie to the Court from any decision of a master, except in any case where an appeal lies to the Court of Appeal pursuant to rule 17. 10 SCR Pt 60 r 17(a): 60.17. An appeal shall lie to the Court of Appeal in accordance with section 101 and 103 of the Act, subject however to the leave of the Court of Appeal in any case to which subsections (2) and (4) of section 101 apply, from any decision of the Court in a Division constituted by a master: (a) upon a trial pursuant to Schedule D paragraphs 1, 2, 3, 3A, 4 (a), 8, 9, 17 and 17A; 11 Schedule D Part 3 paragraph 4: 4 Any - (a) trial or hearing of proceedings (except with a jury); or (b) matter (other than a matter in proceedings tried or to be tried with a jury), where referred to a master by an order of a Judge or the Court of Appeal. (emphasis added) 12 Paragraph 4(a) has been emphasised to correlate it with SCR Pt 60 r 17(a). 13 For the defendant it is submitted that the Master was exercising jurisdiction under clause 4(a) of Schedule D and thus an appeal lies only to the Court of Appeal (by leave). 14 S101(2)(h) makes it clear that an order of the Court (that is, the Judge) on an appeal under Pt 5 of the Justices Act is amenable to an appeal to the Court of Appeal (with leave). 15 The matter dealt with by the learned Master was identical in form and structure and purpose to that which would have been dealt with by a Judge of the Division but for the reference to the Master by the List Judge. 16 Whilst an appeal under Pt 5 of the Justices Act cannot reasonably be characterised as a "trial" (without a jury) it amounts to a "proceedings" under paragraph 4(a) of the Schedule. The decision upon an appeal under Pt 5 of the Justices Act is finally determinative of the rights of the parties in that appeal pursuant to the provisions of S109 of the Justices Act: 109 The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following: (a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it, (b) increasing or reducing the sentence appealed against, (c) making such other orders as it thinks just, (d) remitting the matter to the Magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal. 17 Paragraph 4(b) of Part 3 of Schedule D, it is submitted, is concerned with matters other than of a kind akin to the substantive appeal under Pt 5 of the Justices Act, namely matters referred to the Master more often or not on an interlocutory matter. This, it is said, makes sense otherwise an anomaly is exposed. That anomaly is that proceedings identical in nature when heard by a judge (that is, an appeal under Pt 5 of the Justices Act) are amenable to appeal by leave to the Court of Appeal but where the proceedings have been referred to a Master the appellate process can involve an intervening step of an appeal to a Judge and then an appeal, by leave, to the Court of Appeal. The dilemma, it is submitted, as I understand it, can be resolved by reference not to the identity of the person who hears an appeal under Pt 5 of the Justices Act but by reference to the nature and substance of such a appeal. 18 In written submissions provided by the plaintiff attention is given to Schedule D Part 3 paragraphs 19-21 which make reference in relation to the powers of the Masters to particular kinds of matters in relation to the Associations Incorporation Act 1984 and the Corporations Law. 19 Paragraph 5 of Part 3 of Schedule D expressly refers to proceedings referred to a Master by a Judge where such proceedings arise under or out of 14 statutes but not including the Justices Act. It is said that if an appeal under the Justices Act is "trial" there is no reason to think that an appeal under, say, the Consumer, Trader and Tenancy Tribunal Act 2001 would not be a "trial"; however, if that were the case, there would be no work for paragraph 5 of Part 3 of Schedule D to do. It is the plaintiff's submission that the present case falls within paragraph 4(b) and thus outside SCR Pt 60 r 17(a) by reason of it being a "matter" referred to a Master by order of a Judge, that matter being the appeal under Part 5 of the Justices Act. 20 In this regard it is to be noted that SCR Pt 60 r 17(a) does not refer to any matter under paragraph 5 of the Schedule or indeed paragraphs 19-21. It thus makes clear that there is no appeal in relation to any such matters especially in relation to paragraph 5 matters which are expressly identified as having been referred to a Master by a Judge in relation to the various legislative enactments. 21 In my view paragraph 5, for example, has work to do in the sense that it expressly refers to matters referred by a Judge and thus falls within paragraph 4(b) of the Schedule and is thus excluded by the operation of SCR Pr 60 r 17(a). 22 The fact that paragraph 4(b) expressly refers to a matter referred to a Master by an order of the Judge and 4(a) does not, does not preclude a consideration of the phrase "hearing of proceedings" in paragraph 4(a) as applying to a Justices Act Pt 5 being referred by a Judge merely because such a matter is not expressly referred to, for example, in clause 5. In other words, the consideration of the meaning of the phrase "hearing of proceedings" in paragraph 4(a) is not determined by the fact that 4(b) expressly refers to a matter referred to a Master by the order of a Judge. 23 I have come to the conclusion that the "proceedings" referred to in paragraph 4(a) include an appeal under Part 5 of the Justices Act. The fact that they were referred by a Judge does not trigger the operation of paragraph 4(b) to exclude those "proceedings" from the operation of SCR Pt 60 r 17(a). It is the nature of the proceedings that is determinative in the legislative context upon its proper and sensible construction that governs the avenue of appeal. 24 In the course of submissions by both sides I was referred to Blake v Norris (1990) 20 NSWLR 300 and Baldry v Jackson [1976] 2 NSWLR 415, each side drawing those decisions to my attention with the objective of having them excluded from consideration by reason of the peculiar considerations attending them both. That was a course properly taken and they do not in my view govern the matter of concern to me. 25 It can thus be remarked that the situation is "curious" however, as I have indicated, I am of the view that the "hearing of proceedings" referred to in paragraph 4(a) of Schedule D Part 3 includes an appeal under Pt 5 of the Justices Act and thus is only amenable to an appeal by leave to the Court of Appeal under SCR Pt 60 r 17(a) even in circumstances where it is determined by a Master on reference from a Judge of the Division. 26 Accordingly, (a) I dismiss the Notice of Motion, (b) I order the plaintiff to pay the defendant's costs. ********** Last Modified: 03/07/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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