Rutter v Australian Retirement Fund Pty Ltd [2000] VSC 175 (11 May 2000)

Last Updated: 12 May 2000

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 7783 of 1999

MARGARET RUTTER	Plaintiff
v.
AUSTRALIAN RETIREMENT FUND PTY. LTD. AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 MAY 2000
DATE OF JUDGMENT:	11 MAY 2000
CASE MAY BE CITED AS:	RUTTER v. AUSTRALIAN RETIREMENT FUND PTY. LTD. & ANOR.
MEDIUM NEUTRAL CITATION:	[2000] VSC 175

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CATCHWORDS: Practice and Procedure - Application for leave to appeal pursuant to s.38 of the Commercial Arbitration Act 1984 - Application must be to Judge of the Court - Supreme Court Rules, Chapter 2, Order 4 Rules 4.05, 4.06, 4.08(1) and 4.09 and Order 9 Rules 9.03 and 9.06.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P. Bingham	Maurice Blackburn Cashman
For the First Defendant	Mr. P. Cosgrave	Wood Fussell

HIS HONOUR:

1. This is an appeal from the order of a Master of the Court made on 19 April 2000 whereby the Master declined to hear an application by the appellant for leave to appeal to the Trial Division of the Court from an order of the Superannuation Complaints Tribunal made under s.38 of the Commercial Arbitration Act 1984 and notified to the appellant on 8 November 1999, but ordered that the application for leave to appeal be referred to the Judge in the Practice Court.
2. I was informed by counsel for the parties that the Master referred the application to a Judge of the Court because the Master doubted the power of a Master to entertain such an application.
3. The point is clearly one of practical significance.
4. Section 38 of the Commercial Arbitration Act so far as is relevant states:

"(2) Subject to sub-section (4) an appeal shall lie to the Supreme Court on any question of law arising out of an award. (4) An appeal under sub-section (2) may be brought by any of the parties to an arbitration agreement - (a) with the consent of all other parties to the arbitration agreement; or (b) subject to section 40, with the leave of the Supreme Court."

5. Section 40 has no relevance to the present debate.
6. The Commercial and Arbitration Rules are to be found in Order 9 of Chapter 2 of the Supreme Court Rules.
7. The rules relevant to the appeal are Rules 9.03 and 9.06 which read:

"9.03 Jurisdiction (1) A proceeding in the Court under the Act shall be commenced by originating motion. (2) A Master shall have jurisdiction under the Act except under sections 38 to 45. 9.06 Appeal under section 38 An appeal under section 38 of the Act shall be brought in accordance with Order 4."

8. If one were to go no further than Rule 9.03(2) it is clear that a Master of the Court has no jurisdiction to entertain an application for leave to appeal.
9. But counsel for the appellant contends that that cannot be the situation by reason of the provisions of Rule 9.06 which require an appeal under s.38 of the Act to be brought in accordance with Order 4. He contends that if one has regard to the provisions of Rules 4.05 , 4.06, 4.08(1) and 4.09 of that order it is clear that despite the provisions of Rule 9.03(2) applications for leave to appeal must be made to a Master.
10. Those rules read:

"4.05 Leave to appeal Except as otherwise provided by any Act or Rule, an application for leave to appeal from a tribunal shall be made in accordance with Rules 4.06, 4.07, 4.08 and 4.09. 4.06 Application for leave (1) An application for leave to appeal shall be made within 28 days after the day of the order of the tribunal. (2) An application for leave to appeal shall be made by originating motion. (3) The application is taken to be made when the originating motion is filed. (4) As soon as practicable after filing the originating motion, the applicant shall - (a) deliver a sealed copy of the originating motion to the registrar or other proper officer of the tribunal; and (b) serve the originating motion on the proposed respondent to the appeal. ... 4.08 Summons before Master (1) Within seven days after filing the originating motion, the applicant shall apply on summons to a Master for the leave sought in the originating motion. 4.09 Hearing of application (1) On the hearing of the summons the Master may grant or refuse leave to appeal. (2) Without limiting paragraph (1), the Master may refuse leave to appeal if satisfied that the applicant does not have a prima facie case on appeal or that to refuse leave would impose no substantial injustice. (3) If leave to appeal is granted, the Master shall give directions with respect to the appeal. (4) If directions are given with respect to affidavits, no affidavit in respect of which directions have not been complied with shall be used without leave of the Court. (5) The Master may in a proper case grant a stay of proceedings under the order of the tribunal."

11. However, in my opinion counsel's submissions in that regard overlooks the opening words of Rule 4.05 namely "Except as otherwise provided by any Act or Rule" and the impact of those words.
12. The fact is that Rule 9.03(2) deprives a Master of any jurisdiction to entertain an application for leave to appeal under s.38 of the Act and the provisions of Order 4 insofar as they relate to such application cannot affect that situation.
13. And so although the procedure for making an application for leave to appeal shall be that prescribed by Order 4, the application itself must be made to a Judge of the Court.
14. The appeal will be dismissed with costs to be taxed including any reserved costs and paid by the appellant.
15. I refer the application for leave to appeal to the Listing Master for fixing in the Causes List.
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