BETWEEN : AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512)

PATRICIA MARGARET HANNELL as Executor of the Estate of DAVID RICHARD HANNELL (Deceased)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : HANNELL -v- AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310

Appeal - Whether Court of Appeal has jurisdiction or power to reopen and reconsider perfected order made by it in the determination of an appeal on its merits - Reliance on s 16(1)(d)(i) of Supreme Court Act 1935 (WA)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 63

Supreme Court Act 1935 (WA), s 3, s 7(1), s 7(4), s 16(1), s 16(1)(d)(i), s 58(1), s 59, s 60, s 61

Ainsworth v Wilding [1896] 1 Ch 673

Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218

DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226

Flower v Lloyd (1877) LR 6 Ch D 297

Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145

Grierson v The King [1938] HCA 45; (1938) 60 CLR 431

Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310

In re St Nazaire Co (1879) LR 12 Ch D 88

Ivanhoe Gold Corporation Ltd v Symonds [1906] HCA 71; (1906) 4 CLR 642

Pantzer v Wenkart [2007] FCAFC 27

The State of Western Australia v Wallam [2008] WASCA 117(S)

1 MARTIN CJ: This application should be dismissed for the reasons given by McLure P, with which I agree.

2 McLURE P: The respondent/applicant applies to set aside the orders of this court giving effect to its reasons in Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 and, in lieu thereof, seeks an order that the appeal be dismissed or, alternatively, a retrial. The preliminary issue before the court is whether it has jurisdiction or power to reopen and reconsider an appeal which has been determined on the merits after orders disposing of the appeal have been drawn up and entered.

3 The background is as follows. Mr Hannell was successful at first instance in Supreme Court proceedings against Amaca for damages in respect of his mesothelioma said to have been caused by exposure to asbestos manufactured by the appellant (Amaca): Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310. The orders made by the trial judge, Le Miere J, were drawn up and entered in February 2007.

4 Amaca appealed from the decision of the trial judge. The hearing of the appeal was expedited. On 7 September 2007, this court made orders (the appeal orders) allowing the appeal and setting aside the orders made by the trial judge. On 4 October 2007 the appeal orders were drawn up and entered in accordance with the relevant rules (Supreme Court (Court of Appeal) Rules 2005 (WA), r 63 and Rules of the Supreme Court 1971 (WA), O 43).

5 The respondent filed an application for special leave to appeal in the High Court of Australia. On 24 October 2007, the application for special leave was heard and dismissed.

6 The sole ground on which the respondent applies to set aside the appeal orders is the alleged failure of Amaca to give full and proper discovery of documents. There is nothing in the material filed on behalf of the respondent to support an allegation of fraud. Such a claim was expressly disavowed by counsel for the respondent. The hearing of the application proceeded on the agreed assumption (solely for present purposes) that Amaca had breached its obligations in relation to discovery.

7 The power of this court to reopen and reconsider perfected orders made in an appeal after a hearing on the merits was considered in The

State of Western Australia v Wallam [2008] WASCA 117(S) [6] - [17], [42]. In reaching its conclusions the court in Wallam had regard to decisions of the High Court on the subject, including Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218, Grierson v The King [1938] HCA 45; (1938) 60 CLR 431, Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 and DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226.

8 The court concluded that, in the absence of a statutory provision to the contrary and subject to certain narrow exceptions (that have no application in this case), a formally recorded order made by an intermediate appellate court after a hearing on the merits cannot be reopened or reconsidered: Wallam [16]. The court also concluded that it had no general statutory power, express or implied, to reopen and reconsider perfected orders, civil or criminal: Wallam [17]. See also Pantzer v Wenkart [2007] FCAFC 27 [5] - [7].

9 The respondent challenges the correctness of Wallam insofar as it relates to civil appeals. It is contended on behalf of the respondent (Supplementary Submissions on Jurisdiction, par 3) that the (sole) source of the power of the Court of Appeal to reopen and reconsider an appeal is s 16(1)(d)(i) of the Supreme Court Act 1935 (WA) (the Act). That section was not relied on, or addressed by the court, in Wallam. Section 16(1)(d)(i) relevantly provides:

(1) Subject as otherwise provided in this Act, and to any other enactment in force in this State, the Supreme Court -

...

(d) shall be a court of equity, with power and authority within Western Australia and its dependencies -

(i) to administer justice, and to do, exercise, and perform all acts, matters, and things necessary for the due execution of such equitable jurisdiction as, at the commencement of the Supreme Court Ordinance 1861, the Lord Chancellor of England could or lawfully might have done within the realm of England in the exercise of the jurisdiction to him belonging.

10 The Supreme Court Ordinance 1861 commenced on 18 June 1861. It was repealed by the Act (s 3).

11 The first task is to identify the powers of the Lord Chancellor of England in June 1861. At that time, the Lord Chancellor was the head of the Court of Chancery in England. The Court of Chancery had equitable jurisdiction and very limited common law jurisdiction. Equity is the body of law developed by the Court of Chancery before the Judicature Act 1873 (UK) (36 & 37 Vict c 66).

12 Prior to the Judicature Act, England had one set of courts administering equity and another set of courts administering law. The Judicature Act united and consolidated, inter alia, the superior courts of law and equity in England, including the Court of Chancery, into one Supreme Court of Judicature which comprised two divisions, the High Court, exercising original jurisdiction, and the Court of Appeal, exercising appellate jurisdiction. Law and equity were henceforth to be administered together by a single court.

13 Before the Judicature Act, the Lord Chancellor had jurisdiction to rehear his own decisions or the decisions of a preceding Lord Chancellor: In re St Nazaire Co (1879) LR 12 Ch D 88, 98. That was the case even after a decree had been entered: Ainsworth v Wilding [1896] 1 Ch 673, 676 - 677; Ivanhoe Gold Corporation Ltd v Symonds [1906] HCA 71; (1906) 4 CLR 642, 670; DJL v Central Authority [35]; cf Grierson v The King [1938] HCA 45; (1938) 60 CLR 431, 436.

14 However, the Lord Chancellor's jurisdiction to rehear his own decisions and those of his predecessors in office came to an end with the passage of the Judicature Act: Ainsworth (677) (Romer J); Ivanhoe Gold (670); DJL v Central Authority [35].

15 In In re St Nazaire, Ivanhoe Gold and Ainsworth, the question in issue was whether a judge exercising original jurisdiction had the power to rehear a decision given effect to by a perfected order. The facts of In re St Nazaire are illustrative. A bankruptcy matter was determined in January 1877 and the orders perfected. An appeal from those orders was dismissed. Thereafter, an application was made to reopen the decision at first instance, it having been based on factual errors subsequently discovered. One of the issues for determination was whether the Lord Chancellor's jurisdiction to rehear his own decision involved the exercise of original or appellate jurisdiction. Jessel MR, with whom the other judges agreed, concluded that it was appellate jurisdiction (98).

16 It appears that the Lord Chancellor's appellate jurisdiction involved an appeal de novo on the merits, there being no relevant record to review: Baker JH, An Introduction to English Legal History (2002) 141. By contrast, the Court of Appeal established by the Judicature Act provided for an appeal by way of rehearing, with a power to receive further evidence: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, 619 - 620 (Mason J).

17 Notwithstanding that s 18 the Judicature Act provided that all the jurisdiction and powers of the Lord Chancellor in the exercise of his appellate jurisdiction were transferred to and vested in the Court of Appeal, that Court did not have jurisdiction to rehear an appeal from an order that had been passed and entered: Flower v Lloyd (1877) LR 6 Ch D 297 (Jessel MR, James LJ and Baggallay LJ).

18 For the sake of completeness, I note that a Court of Appeal in Chancery was established by statute in 1851 (14 & 15 Vict c 83) which it has been said provided for an appeal by way of rehearing rather than an appeal de novo: Builders Licensing Board v Sperway (619 - 620). However, the statute establishing the Court of Appeal in Chancery did not expressly divest the Lord Chancellor of his jurisdiction to rehear.

19 The notion of a single judge conducting an appeal from himself or his predecessor in office is very alien in a modern context. The majority in DJL v Central Authority noted:

[The] peculiar state of affairs in Chancery did not continue with respect to the exercise of equitable jurisdiction by the Supreme Court of Judicature established by the Judicature Act 1873 (UK). The structure it provided included the Court of Appeal [35].

20 It is apparent from that extract that the Lord Chancellor's power to rehear was confined to the exercise of equitable jurisdiction by the Court of Chancery. It did not extend to that court's limited common law jurisdiction. An appeal is not a common law proceeding. In the absence of a statute, there is no appeal from common law courts: CDJ v VAJ (No 2) (1998) 197 CLR 172, 196 - 197; Builders Licensing Board v Sperway (619).

The Supreme Court Act 1935 (WA)

21 This case concerns the jurisdiction or power of the Court of Appeal, it having heard and determined the appeal the subject of the application. The scope of the jurisdiction and power of the Court of Appeal is solely a matter of statutory construction of the Act.

22 The Court of Appeal was established on 1 February 2005 by amendment to the Act made by the Acts Amendment (Court of Appeal) Act 2004 (WA).

23 The exercise of the jurisdiction of the Supreme Court of Western Australia is divided between the General Division and the Court of Appeal (s 7(1)). Section 16(1) of the Act specifies the matters falling within the jurisdiction of the General Division. The jurisdiction of the Court of Appeal is specified in s 58(1) of the Act, subject to the exceptions identified in s 60. Section 58(1)(b) was the source of the Court of Appeal's jurisdiction to hear and determine the appeal the subject of this application. That section relevantly provides:

(1) Subject as otherwise provided in this Act ... the Court of Appeal shall have and shall be deemed since the coming into operation of this Act always to have had jurisdiction to hear and determine -

(a) ...

(b) ... appeals from a judge ... whether sitting in court or in chambers.

24 The powers of the Court of Appeal are specified in s 59 and s 61 of the Act. The express provisions of the Act conferring the jurisdiction and powers of the Court of Appeal do not confer either the jurisdiction or the power to reopen and reconsider its perfected orders.

25 Of further particular significance is that the General Division does not have jurisdiction over the matters in s 58(1). Section 7(4) of the Act provides:

The General Division exercises all of the jurisdiction of the Supreme Court other than the jurisdiction referred to in section 58(1).

26 The unequivocal statutory intention is that the jurisdiction and powers of the Court of Appeal are confined to the matters in s 58 - s 61 of the Act. The jurisdiction of the General Division in s 16(1), including that in s 16(1)(d)(i), has no application to the exercise of appellate jurisdiction by the Court of Appeal.

27 It is unnecessary, and undesirable, to rule on the precise scope of the jurisdiction conferred on the General Division by s 16(1)(d)(i). Whatever it may be, it does not in terms, purpose or effect confer jurisdiction or

power on the Court of Appeal to reopen and reconsider a perfected order made by it in the determination of an appeal on its merits. It cannot be seriously suggested that the legislature, in establishing a modern appellate structure, intended the peculiar state of affairs in Chancery in 1861 to supplement the jurisdiction and powers expressly conferred on the Court of Appeal.

29 BUSS JA: Generally for the reasons given by McLure P, I would dismiss the application.