TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Procedure - Supreme Court procedure - Tasmania - Practice under the Rules of Court - Other matters arising before trial - Discontinuance - After delivery of defence and taking a step - By order of the Court - Meaning of "leave to discontinue".

Rules of the Supreme Court 1965 (Tas), O29, r1(1) - (3).

Fox v The Star Newspaper Co [1900] AC 19; Phillips v Ellinson Bros Pty Ltd [1941] HCA 35; (1941) 65 CLR 221; Tamsett v Conditionaire Engineering Pty Ltd [1978] 2 NSWLR 511, followed.

Procedure - Supreme Court procedure - Judgments and orders - Effect of judgments - In general - Where order not authorised by the Rules of Court - Valid until withdrawn.

Re K Piper (Deceased) [1960] SR (NSW) 328; Frick Australia Pty Ltd v Pen Pak Ocean Products Pty Ltd [1971] Qd R 286; The National Executors Trustees and Agency Company of Australia Limited v Crooke (1898) 24 VLR 353; Chugg and Chalk v Dwyer A72/1993, followed.

Judgment Number: [2006] TASSC 2

GEOFFREY DAVID ALLAN, GDA PLUMBING PTY LTD v ANTHONY HOCKING, RAYMOND FRANCIS TILLEY, GEOFFREY CLEMENT FRANCIS FADER,

GEOFFREY DAVID ALLAN, GDA PLUMBING PTY LTD v ANTHONY HOCKING, RAYMOND FRANCIS TILLEY, GEOFFREY CLEMENT FRANCIS FADER,

1 As long ago as 8 February 1984, the appellants commenced proceedings against the abovenamed respondents, and Wilfred Asquith Townsley and Rex Joseph Collins. Mr Ellis SC, who appeared as counsel for the respondents to the appeal, advised that Messrs Townsley and Collins died some time after the commencement of the proceedings, but no step had been taken to remove their names from the title to the action, nor any attempt made to join their executors or administrators as parties to the action. He did not appear for them upon the hearing of this appeal.

2 The claim was for damages for defamation. The defence admitted that at all material times the defendants (including the deceased) were members of the Consumer Affairs Council constituted by the Consumer Affairs Act 1970. Trial of the action before a judge and jury commenced on 8 October 1991. The trial continued for several days. During the whole of that time, the first appellant was in the witness box. On the morning of 21 October 1991, counsel for the appellants announced "the action has now been settled" and asked the trial judge to "exercise his discretion pursuant to the provisions of the Rules of the Supreme Court 1965, O29, r1, to enable the plaintiff to discontinue ... I seek leave on behalf of the plaintiffs to discontinue the action against each of the defendants". There ensued some discussion about the terms of settlement that had been reached. Counsel for the defendants at trial did not oppose the application for leave to discontinue and said, "the Crown undertakes that consequent upon the filing of a notice of discontinuance by the plaintiffs against all defendants, none of the defendants will pursue orders for costs against any of the plaintiffs".

3 The learned trial judge granted leave to discontinue pursuant to O29, r1, and noted the matters that had been said to him. The parties left the court and that was supposed to be the end of that litigation, but things changed.

4 By letter dated 22 December 2004 addressed to the Registrar of the Supreme Court, copy to the solicitor for the respondents, the appellants' solicitors wrote that fresh evidence had come into their possession that "vitiated" the settlement reached in 1991. The appellants sought a directions hearing and an order that they be given leave to proceed pursuant to the Supreme Court Rules 2000, r56(1). The directions hearing came on before Hill AJ. Not surprisingly, the application for leave to proceed was opposed.

5 Rule 56(1) provides that if no step in a proceeding has been taken for six years, a party may not take a further step without the order of the court or a judge. The rule confers a judicial discretion. However, Mr Ellis contended that the exercise of that discretion could not arise because there are no proceedings. He submitted that they came to an end when leave was given to discontinue them.

6 It was decided that the issue of whether or not there were extant proceedings be determined as a preliminary point. The learned judge at first instance upheld Mr Ellis' submission and dismissed the application for leave to proceed. This appeal is brought against that order.

7 It was common ground that following the grant of leave to discontinue, the parties and their counsel left the court room, but no notice of discontinuance was filed and no order was taken out or perfected. Mr Ellis submitted that:

* the grant of leave was the discontinuance of the proceedings;

* there was no obligation to file a notice of discontinuance; and

* there was no obligation to take any other step or take out any order.

8 Mr Tree SC, counsel for the appellants, submitted that:

* upon its proper construction, the relevant rule required the filing of a notice of discontinuance before it could be said that the proceedings had come to an end; and

* in any event, until the order giving leave had been perfected, the proceedings were not at an end.

9 It was common ground that the relevant rule was the Rules of the Supreme Court 1965, O29, r1(1) - (3), which provides:

"(1) The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other proceedings in the action (save any interlocutory application) by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.

(2) The costs referred to in sub-rule (l) of this rule shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.

(3) Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court or a judge, but the Court or a judge may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out."

10 The interesting thing about the foregoing provisions is that apart from two or three words, and the division into three paragraphs, they are identical to the provisions of the Rules of the Supreme Court (UK), O26, r1, as enacted after the passage of the Judicature Acts more than a century before this litigation began. See Annual Practice (UK) (1885 -1886), O26.

11 Prior to the enactment of the Judicature Acts, there were various methods by which a plaintiff could bring proceedings to an end without prejudice to his or her right to recommence them. In the Court of Chancery, a plaintiff could obtain an order dismissing his or her bill. See Thompson v Thompson [1844] EngR 742; 7 Beav 350: 49 ER 1100; Daniell's Chancery Practice 4th ed (1865) at 731. In addition, a plaintiff was entitled to an order of dismissal upon an ex parte application unless during the course of proceedings the defendant had obtained rights. See Cooper v Lewis 2 Ph 178 at 181: 41 ER 909 at 910 - 911; Ainslie v Sims [1853] EngR 592; 17 Beav 174: 51 ER 999.

12 In the common law courts, a plaintiff was entitled to elect to be non-suited at any time before the jury delivered its verdict if "the plaintiff finds that his evidence is not sufficient to maintain his case," per Chitty's Archbold's Practice 12th ed (1866) at 409. In addition, at common law the plaintiff was entitled to obtain "a rule" or order (Jowitt's Dictionary of English Law, 2nd ed at 1595 - 1596) for leave to discontinue. The rule or order could be obtained at any time "as of course before trial or writ of enquiry or demurrer argued and allowed", per Chitty's Archbold's Practice (supra) at 1483. This is described as a mere "side-bar rule" at 1484, meaning that a plaintiff was entitled as of course to discontinue. Earl Jowitt's dictionary provides an interesting history of the "side-bar" rule at 1659, but it suffices to note for present purposes that a side-bar rule was an order obtained ex parte as of right. At any time other than before argument on demurrer, verdict or execution of a writ of enquiry, discontinuance was only allowed by leave of the court and usually on terms in the discretion of the court.

13 These methods of bringing proceedings to an end at the instigation of the plaintiff all required orders of the court. The form of order for discontinuance appears in Chitty's Queens Bench Forms 9th ed (1862) at 834 in these terms:

It is ordered, upon payment of the defendant's costs to be taxed by one of the masters, that this action be discontinued.

14 The Judicature Acts and the Rules of the Supreme Court (UK), O26, r1, not only made new rules with respect to procedure for discontinuance, but the latter also abolished the right to a non-suit and a plaintiff's right to dismiss his or her own bill in equity. Authority for this proposition is Fox v The Star Newspaper Co [1900] AC 19; Phillips v Ellinson Bros Pty Ltd [1941] HCA 35; (1941) 65 CLR 221; Tamsett v Conditionaire Engineering Pty Ltd [1978] 2 NSWLR 511.

15 This historical survey leads to the inference that the plaintiff's entitlement to discontinue as of right before, or immediately after, receipt of defence as provided in the Rules of the Supreme Court (UK), O26, r1, and in the Rules of the Supreme Court 1965, O29 r1(1) - (3), owes its origin to the old common law side-bar rule, but the requirement that an order of discontinuance must be obtained was deemed unnecessary and replaced by the giving of a notice in writing.

16 The Full Court of the Federal Court considered this notice of discontinuance and its historical origins in B & J Engineering Pty Ltd (in liq) v Daroczy & Anor (1984) 57 ALR 240. For reasons that appear at 242 - 244, it was held that "notice in writing" means written notice by the plaintiff and delivered to the defendant.

17 As explained in Fox v The Star Newspaper Co (supra) the Rules of the Supreme Court (UK), O26, r1, enacted after the passage of the Judicature Acts made it clear that:

* the right to a non-suit or dismissal of the bill, previously available to a plaintiff to bring his or her suit or action to an end without prejudice to its recommencement had been abolished;

* the side-bar order or rule for discontinuance had been replaced by a written notice from the plaintiff to the defendant, but was only available before delivery of defence, or after such delivery but before any other step in the proceedings was taken; and

* discontinuance was otherwise only available by order of the Court and subject to such terms as may be considered appropriate.

18 In order to achieve the foregoing, the original English rule and the Rules of the Supreme Court 1965, O29, r1(1) - (3), first set out the right to discontinue by delivery of written notice, secondly stated, "save as in this rule otherwise provided it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the court or a judge ...", and thirdly:

"But the court or a judge may, before, or at, or after the hearing of the trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out."

19 The provision secondly made does not confer a power to order that leave to discontinue may be given. It is a statement that the pre-Judicature Acts methods of discontinuance as of right, non-suit and dismissal of own bill, have been abolished. Included in this abolition is the abolition of the right to withdraw the record without seeking the leave of the court. This was a reference to the pre-Judicature Acts right of counsel who entered a cause for trial to withdraw it from the list without seeking the leave of the court. Ordinarily such a cause could not be re-listed until the next sitting. See Chitty's Archbold's Practice 12th ed (1866) where the learned editor said, at 381:

"If the cause be coming on, and you are not prepared to proceed with the trial, you may withdraw the record. This, however, can be done only by the party who entered the cause with the marshal, by the plaintiff in ordinary cases, or by the defendant if he have carried down the record by proviso, and entered it for trial. The record, however, cannot be withdrawn by counsel who is merely retained in the cause, but to whom a brief has not been delivered. And where the record is thus withdrawn, and afterwards re-entered and tried, and the plaintiff has a verdict, the Master will not allow in taxation the costs of the second entry and attendance of witnesses, &c, thereupon. The counsel for the plaintiff has a right, upon his cause being called on, to request the swearing of the jury to be suspended until a necessary witness has been called upon his subpoena, and it has been ascertained whether he be present; and upon finding he is absent, the counsel may then withdraw the record."

20 Consistent with the pre-Judicature Acts position, the provision thirdly made enables the making of an order for discontinuance upon terms. Added to that is the power to make an order, in effect, for an adjournment, in lieu of the right to withdraw the record.

21 In my view, the rule does not confer any power to simply, "give leave to discontinue an action". It provides for two methods for discontinuance: by delivery of a written notice within a specified time-frame and by order that the action be discontinued upon such terms as may be appropriate. The concept that a court could "give leave to discontinue" an action was unknown to the law immediately prior to the rule coming into existence, and an enactment to that effect was unnecessary for in order to discontinue, a plaintiff either exercised a right he or she had to deliver written notice to that effect, or sought an order, usually subject to terms as to costs and the like, that the action be discontinued.

22 This construction is supported by Chitty's King's Bench Forms 16th ed (1931) at 211 - 212 where a notice of discontinuance, an application for leave to discontinue and an "order thereon" are set out. The operative part of the order is "this action be discontinued ... ". Precedent to the same effect appears in Seton's Judgments and Orders 6th ed (1901) at 128.

23 However, it seems that the learned trial judge did purport to give leave to discontinue. He said, "Well, pursuant to Order 29, rule 1, leave is granted to discontinue." I would interpret those words to mean that "It is ordered that leave to discontinue is granted."

24 It is unnecessary to decide whether that order was within the jurisdiction of the Court, because even if it was not, that order remains valid until set aside. The rationale for this proposition appears from the following passage taken from the judgment of Myers J in Re K Piper (Deceased) [1960] SR (NSW) 328 at 331:

"As such it [the order] was, in my view, beyond the power of the court. That circumstance, however, does not make the order a nullity. The application was properly made in pursuance of the statute, and the court had jurisdiction to make the order. It made, in my opinion, an order which was not authorized by the Act, but that does not make the order void or a nullity. No order or judgment of this court can be treated as void or non-existent merely because the order itself was beyond power. In such cases the order stands and remains binding unless it is set aside on appeal. Revell v Blake (1873) LR 8 CP 533, Scott v Bennett (1871) LR 5 HL 234, at p 245, where the opinion of the judges was stated in these words: 'It was said by the learned counsel that there was no jurisdiction to make this rule. That is entirely a mistake. The Court of Common Pleas is one of the superior courts of record. It may be that the Act of Parliament did not justify it, but nevertheless the judges had perfect jurisdiction to make it; and the rule being made by them it is binding and conclusive on all the world unless it can be altered by appeal or error'."

This principle has been adopted in a number of cases. See, for example, Bridges v Hershon & Ors [1968] 3 NSWR 47; Frick Australia Pty Ltd v Pen Pak Ocean Products Pty Ltd [1971] Qd R 286; The National Executors Trustees and Agency Company of Australia Limited v Crooke (1898) 24 VLR 353. Some of these authorities I referred to in Chugg and Chalk v Dwyer A72/1993 where I said at 2:

"The order made by Cox J stands and is binding unless set aside on appeal or, as it has not yet been perfected, withdrawn by his Honour. This is so even if it was made without statutory authority. See Re K Piper Deceased [1960] SR (NSW) 328; Bridges v Hershon [1968] 3 NSWR 47; Frick Australia Pty Ltd v Pen Pak Ocean Products Pty Ltd [1971] Qd R 286; Halsbury's Laws of England, 4th edn, vol26, par556. Cf Minister for Health (Commonwealth) v Ancient Order of Foresters' Friendly Society in Queensland (Trustees) (No 2) (1985) 61 ALR 302 in which case, the court had no jurisdiction over the subject matter of the litigation at all."

25 In that case I held that an order giving leave to withdraw a motion to review an order made in a court of petty sessions was effective to bring the proceedings instituted by that motion to an end even though there was no statutory provision authorising the making of it. I also held that as no procedural step was prescribed following the making of such an order, the proceedings had come to an end upon the making of the order. The learned judge at first instance in the present appeal followed my reasoning in Chugg and dismissed the application for an order for leave to proceed.

26 I, too, would follow the reasoning in Chugg and Chalk, but argument on the appeal raised another issue. It was contended that as the order of the learned trial judge had not been perfected, his Honour could withdraw it; accordingly, the proceedings had not come to an end and therefore this preliminary point should not be decided in favour of the appellant.

27 The matter was argued this way in In re Harrison's Share Under a Settlement: Harrison v Harrison [1955] 1 Ch 260 at 276:

"We think that an order pronounced by the judge can always be withdrawn, or altered, or modified by him until it is drawn up, passed and entered. In the meantime it is provisionally effective, and can be treated as a subsisting order in cases where the justice of the case requires it, and the right of withdrawal would not be thereby prevented or prejudiced."

28 In Suffield and Watts: Ex parte Brown (1888) 20 QBD 693, Fry LJ said at 697:

"In re St Nazaire Co 12 Ch D 88 shews that, when an order or judgment of the High Court has once been perfected, the Court has no jurisdiction to alter it. So long as the order has not been perfected the judge has a power of re-considering the matter, but, when once the order has been completed, the jurisdiction of the judge over it has come to an end."

See also The Church of New Faith Incorporated v Bower (1979) 21 SASR 161; In re St Nazaire Co (supra).

29 It seems to me that the foregoing applies to interlocutory orders with the same force as it does to final orders. In so saying I am conscious of the provisions of the Rules of the Supreme Court 1965, O46, r30, which provides that unless a judge or the court so directs, an interlocutory order need not be taken out "but the production of a note or memorandum of such order signed or initialled by a judge ... shall be sufficient authority for the doing of the act ordered." Presumably such a signed note or memorandum would operate to the same effect as a perfected order.

30 However, it is not necessary to consider this further. At the time the application was made before the learned judge at first instance, the order of the learned trial judge was in full force and effect and the proceedings had come to an end. Absent a successful application to the learned trial judge to revoke the order giving leave to discontinue, the application for leave to proceed with the proceedings must fail. No such application has been made. Accordingly, the learned judge at first instance was right to summarily dismiss the application. I would dismiss this appeal.

GEOFFREY DAVID ALLAN, GDA PLUMBING PTY LTD v ANTHONY HOCKING, RAYMOND FRANCIS TILLEY, GEOFFREY CLEMENT FRANCIS FADER,

GEOFFREY DAVID ALLAN, GDA PLUMBING PTY LTD v ANTHONY HOCKING, RAYMOND FRANCIS TILLEY, GEOFFREY CLEMENT FRANCIS FADER,

32 I agree with the reasons for judgment of the learned Chief Justice and would dismiss the appeal.