AUSTN EDUCATION UNION, SA BRANCH v GRIEVE

Supreme Court of SA|1999-09-08|Before: Doyle CJ, Martin JJ, As Doyle CJ

For the reasons stated in McAdam, any such application will usually be considered by the Full Court as constituted for the original hearing. There will be cases in which, for one reason or another, that cannot or should not be done. In McAdam Doyle CJ canvassed, in a general way, the circumstances in which the Full Court should be differently constituted to consider an application such as that now before the Court. We will return in due course to this issue.

The trial judge heard a claim by Australian Education Union, South Australian Branch ("the Union") against its architect for damages. The Union alleged that the architect had failed to carry out the terms of his engagement with the Union in connection with the containment or removal as appropriate of asbestos from the Union's building. The Union claimed that the containment and removal work was not properly done, and that the architect was at fault in failing to detect this by inspecting the work at a critical stage in its progress and again before the issue of a certificate of practical completion.

The judge also rejected a submission by the Union that loose asbestos found in the roof space in 1994 indicated inadequate workmanship when the original work was done in 1984. He also rejected evidence led by the Union from Mr Rahlf to the effect that a significant part of the relevant area had not been sprayed with PVA. Spraying with PVA was a method of sealing into place asbestos fibres that could not be removed. On these issues the Union had relied upon evidence from Mr Rahlf, Ms Nicol and Mr Goatham. As to the first two, the judge said that they were not qualified to relate their observations in 1994 to the state of the work at its conclusion in 1985. The judge's conclusion on this point was expressed as follows:

"The plaintiff relies upon the observations made in 1994 in support of its contention that the work in 1984-85 was not properly carried through. The evidence does not take account of what may have happened over a period of nine years as a result of the breaking down of the material. Differential expansion and contraction of the materials seems to be a likely cause of the loose material found in 1994 although other possibilities were not excluded. The conditions in the ceiling were extreme and Mr Hall explained how this could occur (see T517-518). A representative of EIL or Mr Fusco (who was the foreman of Consolidated Contractors) would be those who could be expected to know the condition of the job upon completion in 1985."

The effect of the judge's decision is that the presence of loose asbestos in the ceiling space in 1995 could be attributed to the breakdown, over ten years, of PVA that had been sprayed over the asbestos in 1984. This in turn was attributable to a differential expansion and contraction of materials. That breakdown would result in the exposure of asbestos fibres. Similarly, an observation by Mr Rahlf that substantial areas of the underside of the roof had not been sprayed could be explained on the basis that the breakdown of the PVA meant that PVA was no longer there to be seen, and the roof surface would appear to have been unsprayed. It was in this way that the judge disposed of that evidence led for the Union.

As we have said, in so deciding the judge took the view that the observations made in 1994 did not provide a basis for concluding that the work had not been properly done in 1984.

On appeal, the Full Court held that the architect was under an obligation to inspect the work and had failed to do so. Doyle CJ and Martin J agreed with the reasons of Perry J, who on this point said [at 47 & 48]:

"In my opinion, there are at least two stages at which the respondent owed a duty to make a careful inspection of the site. They were, following the removal of the asbestos and before the application of PVA; and the second, after the builder had finished the removal work and before the issue of the certificate of practical completion. The respondent did not make an inspection on either of those occasions."

The Full Court held that if the inspection had been carried out in 1984, it would have disclosed that not all accessible asbestos had been satisfactorily contained by spraying it with PVA or satisfactorily removed. In reaching this conclusion the Full Court relied upon the evidence of Mr Rahlf, and found support for his evidence in the evidence from Ms Nicol and from Mr Goatham. The Court took the view that answers given by Mr Hall in cross-examination (an architect called by the Union) and by Mr Haddrick (an architect called by the architect) about the possible breakdown of PVA over a ten year period did not explain away the evidence about the presence of asbestos in 1994 and the apparent failure to spray with PVA. The Court also placed some weight upon the failure to cross-examine either Mr Rahlf or Mr Goatham about the possibility that their observations could be explained by the breakdown of PVA. In his reasons Perry J canvassed the evidence of Mr Rahlf, Ms Nicol and Mr Goatham, and also the explanation for their observations based upon evidence given by Mr Hall and Mr Haddrick. He reviewed the findings of the trial judge, and explained why he came to a different conclusion. The essence of the reasoning of Perry J is to be found in the following portion of his judgment [at 68 and 69]:

"In my opinion, despite the evidence of Mr Haddrick that expansion and contraction in the intervening period might have resulted in a breakdown of the coating over the asbestos and resulted in more loose asbestos being apparent than might have been the case at the time the job was being done in 1984, the failure to cross-examine either Mr Gotham or Mr Rahlf on this issue as to which they had expressed adamant and unqualified condemnation of what the work must have looked like in 1984, coupled with the evidence of Ms Nichol, should have led to findings that too much asbestos was left in areas where it was readily accessible and might have been scraped off, that it was not in a state where it could satisfactorily be sealed off with PVA paint, and that in any event, the application of PVA paint was defective in that there was a substantial proportion of the area in question which was not sprayed.

In reaching those conclusions, I have not overlooked the evidence of Mr Hall given during the course of his cross-examination, as to the likelihood that expansion and contraction of the roof decking would have adversely affected the bond between it and the attached asbestos. That evidence was couched in general, theoretical terms. At no time was he asked whether that process would explain the total picture as it appeared in the video, and particularly the presence of the whole of the loose asbestos depicted in it."

Although this anticipates later matters, it is convenient to mention here the main points made about these issues when the matter was first before the Full Court, and on the present application. The first point made for the architect was that he did not undertake an obligation to inspect or to supervise the standard of workmanship. The outcome of the work was to be assessed by others. Next, it was submitted that the issue was the standard of the work done in 1984, and that the line of reasoning that found favour with the Full Court was deficient because it did not identify in what respect the work in 1984 was said to fall below the required standard. Then there was the submission already alluded to, that the observations of loose asbestos in 1994 and of apparently unsprayed areas were quite inconclusive. They were inconclusive because if the PVA had broken down meantime, one would expect to find loose asbestos and apparently unsprayed areas.

Having the reached the conclusions referred to, the Full Court remitted the matter to the trial judge to deal with an application for an extension of time under the Limitations of Actions Act, and to assess damages.

Submissions by the Respondent on the Application for a Review of the Judgment

The respondent submits that he has not been fairly heard on the issues on which the Full Court decided the appeal. It is submitted that the Full Court decided points on which he was not heard, relied upon evidence to which he was not given the opportunity to direct submissions on appeal, and did not consider or hear submissions on relevant evidence that was not included in the appeal books. That being so, the respondent submits that the conclusion reached should be set aside, and further argument heard on the issues arising on appeal.

The respondent submits that his submission should be dealt with by a differently constituted Full Court. It is submitted that it is difficult for the Court to consider a submission that it has failed to act fairly. It is submitted that if the relevant issues are to be re-opened because there has not been a fair hearing, then the members of the original Full Court might not be able to rid themselves of the effect of their earlier decision, and in particular their decision to act on the evidence of Mr Rahlf, Ms Nicol and Mr Goatham. It is submitted that the only solution is a re-hearing before a differently constituted court: see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. It is submitted that there has been a denial of natural justice that affects the entitlement of the architect to make submissions on issues of fact, and that the remedy for that denial is a fresh hearing before a differently constituted court.

Should the Full Court as Presently Constituted Dispose of the Application?

As the Full Court said in McAdam, an application such as that made here should be made to the Full Court that originally heard the matter, unless there is a good reason not to do so.

The present case is not one in which there is a disqualifying factor present. Nor is the case one in which the Court has already expressed its opinion on the fairness of the procedure adopted. The Court is required to do no more that to decide whether, having regard to the manner in which the appeal was conducted, it should have invited further submissions before deciding the case as it did. In one sense it can be said that by having decided the case, the Court has implicitly stated that it regards the procedure adopted as fair. But the Court has not previously heard or decided upon the respondent's submission that is now advanced. The submission is now put for the first time that there are reasons why counsel for the architect did not address certain issues and did not bring certain evidence to the Court's attention. While the ultimate submission is, as a matter of law, that the Court has erred, the submission is on the basis of matters not previously put to the Court.

We do not consider that there is any reason why a fair minded observer should apprehend that the Court might not be able to consider the submission now advanced in an impartial manner. Everyone understands that in a complex factual case, such as the present one, it is possible for a court to misapprehend the basis upon which proceedings are being conducted.

There are also good reasons why the Court as presently constituted should dispose of the application. The consideration of the submissions now made involves the close consideration of the course of the original appeal. The Court as presently constituted is better placed to consider that than a court differently constituted. There are some practical reasons not to leave such an issue to a differently constituted court, unless compelling interests of justice so require.

In relation to this issue we refer to and adopt what was said by Doyle CJ in McAdam.

In our opinion we can and should decide the application now before the Court.

The first submission is that the respondent has not been fairly heard as to whether he had a non-delegable duty to inspect the work before the spraying of PVA and before certifying practical completion. The submission is that he was entitled to leave any such inspection to another person, for example the asbestos monitor.

It was an essential feature of the plaintiff's case on appeal that the defendant owed a duty to the plaintiff to carry out the inspections and failed to do so. Grounds 2-5 of the Notice of Appeal and paragraph 5 of the plaintiff's written outline before the Full Court spelt out that complaint. Ground 5 and paragraph 6 of the outline specifically challenged the finding of the learned trial Judge that the defendant was entitled to rely upon an inspection and judgment by an asbestos monitor in order to discharge his duty of inspection. Paragraph 6 was in the following terms:

"6. The error which the appellant asserts His Honour the Learned Trial Judge has fallen into is that His Honour wrongly found first, that the defendant was entitled to rely upon the asbestos monitor's judgment as to whether the work had been properly carried out, secondly, that the defendant did so rely upon the monitor and finally, that any such general practice which might have allowed such reliance could have excused the defendant from complying with the specific terms of the contract which he prepared on behalf of the plaintiff."

This line of reasoning was pursued in oral submissions before the Full Court by counsel for the plaintiff.

In response, the defendant's written outline before the Full Court specifically addressed the delegation of the duty of the inspection in the following terms:

"[5] The evidence established that the duty of inspection before PVA application was properly assigned to an asbestos monitor: AB629. There is no evidence that there was not a physical inspection by Grieve prior to issuing the Certificate of Practical Inspection: AB706.28-9. The topic was not pursued by the cross-examiner. [6] There is nothing in the architect's contract which requires personal performance."

That written submission was supported by oral submissions.

It is clear, therefore, that the issue as to whether the defendant had a non-delegable duty to carry out the two inspections was raised and became the subject of both written and oral submissions. The present submission is no more than an attempt to re-argue a matter already fully argued.

The second submission is that the respondent has not been fairly heard as to whether he carried out an inspection before certifying practical completion. Once again, that is a matter that was argued previously, and fully argued. There is nothing at all in the submission that the respondent has not been fairly heard on this issue.

As to these two submissions we can only emphasise that McAdam does not permit the putting of new or improved submissions on matters already dealt with.

The third submission is more substantial and more complex.

Ultimately, the respondent challenges the decision of the Full Court to act on the opinion expressed by Mr Rahlf that substantial areas of the roof surface had not been sprayed with PVA. The respondent also ultimately challenges the conclusion that the presence of loose asbestos observed by Mr Rahlf and others in 1994 leads to a conclusion that the treatment of the asbestos in 1984 was inadequate. We have already indicated the substance of the argument advanced by the respondent in support of this challenge. The respondent submits that the Full Court's reliance on the failure to cross-examine the Union's witnesses about the possible breakdown of PVA is misplaced. The respondent also submits that the possibility of the breakdown of PVA is, in any event, an explanation for the observations in 1994. This challenge by the respondent involves revisiting issues previously argued at length. The respondent appears to acknowledge that much.

But the respondent complains that in reaching the conclusion that it reached, the Full Court unfairly relied on supporting evidence from Ms Nicol. Her evidence was to the effect that the quantity of asbestos present in 1994 was such that it led to the conclusion that on the most liberal interpretation of the contractual documents, and of recognised practices in 1984, the standard of the work was inadequate. The procedure adopted by the Full Court was unfair because the respondent did not address on her evidence. The respondent did not address the Full Court on her evidence because, it is submitted, the appellant did not rely on it. As well, it is complained that the Full Court referred to a portion of Ms Nichol's examination-in-chief not reproduced in the appeal books. The result is that the Full Court overturned the trial judge's finding that Ms Nicol was not qualified to express the opinion that she expressed, without considering all her evidence relevant to her expertise and without hearing from counsel for the respondent.

The respondent further submits that the Full Court unfairly found support for Mr Rahlf in the evidence of Mr Goatham. The respondent did not put submissions about this evidence to the Full Court because the Union did not rely on the evidence. Again, the Full Court has reversed a finding by the trial judge that Mr Goatham was not qualified to express the view that he expressed about the standard of the work done in 1984, without hearing from the respondent.

The respondent also submits that the Full Court has failed to act on evidence from Mr Hall and Mr Haddrick to the effect that the PVA sealant might have broken down between 1984 and 1994, and that that provides an adequate explanation for the observations made in 1994.

The respondent submits that certain evidence not included in the appeal books, in particular evidence from Mr Bee, was relevant and needed to be considered by the Full Court.

To consider the fairness of the approach taken by the Full Court, it is necessary to return to the facts of the case.

The possibility that the breakdown of the PVA between 1984 and 1994 was a complete answer to the observations made by Mr Rahlf in particular was fully argued on appeal. The Court was taken to Mr Rahlf's evidence at some length. The Court was referred to evidence from Mr Haddrick. He did give some evidence in support of the thesis that the PVA might have broken down over the ten year period. But that evidence was fairly general. It identifies a possible explanation for what was seen in 1994. It was not given as a firm opinion tied closely to the actual observations made in 1994. However, it is fair to say that the tenor of the evidence is supportive of the respondent's case. For the sake of clarity, we indicate that we refer here to the evidence at T753-757 and T767-768. The comment that we have made applies with greater force to the cross-examination of Mr Hall, who was called by the Union. The concessions that he made were very general and, as we read them, quite tentative: see T515-525. Bearing all that in mind, we remain of the firm opinion that the decision by counsel for the respondent not to cross-examine Mr Rahlf or Mr Goatham about this thesis, or at least the possibility that the thesis provides an explanation for their observations, is a matter open to use by the Court.

In any event, the main point that we make is that the submission that the breakdown of the PVA was an explanation for what was observed in 1994 was fully considered by the Court.

There can be no complaint on the grounds of fairness about the Full Court's decision to accept and to act upon Mr Rahlf's evidence in the manner in which it did. Nor can there be any complaint on the grounds of fairness about the decision by the Full Court not to act on the thesis advanced on the basis of the evidence from Mr Hall and Mr Haddrick. This was a central issue, and was fully argued. Mr Wells QC, for the respondent, more or less accepted this. His argument was founded upon the use made of other material to support the Court's decision.

It should have been obvious that as the Court was being urged by the Union to accept and to act upon Mr Rahlf's evidence, the Court was likely to consider other evidence that tended to support the evidence of Mr Rahlf for the conclusion that the Union sought to draw from it. The Court could hardly do otherwise; the evidence of Mr Rahlf could not be considered in a vacuum. Just as the evidence from Mr Hall and Mr Haddrick might tend to undermine it, other evidence might tend to support it.

The evidence of Ms Nicol and Mr Goatham is in the category of relevant supporting evidence. Contrary to the submission by Mr Wells, Mr Hevey for the Union did not eschew reliance on that evidence. Both counsel on appeal referred to and adopted the written submissions that they had made to the trial judge. Unusually, those submissions were included in the appeal books. In the written trial submissions Mr Hevey relied upon Ms Nicol and Mr Goatham in the following passages:

"42. The evidence of Ms Nichol and Mr Rahlf stands uncontradicted. More importantly, their evidence is supported by objective visual evidence in the form of video tape and still photographs. That evidence graphically demonstrates the extent of the asbestos contamination remaining in the ceiling cavity as at 1994. Some question has been raised as to their qualifications. The simple fact of the matter is that the tasks which they are required to do (or in Ms Nichol's case was required to do), do not require a Doctorate of Philosophy to carry them out. Mr Rahlf gained his experience in the most appropriate manner; namely doing the work on a day to day basis over an extended period of time. Despite the attack on his ability or expertise, there is no evidence to suggest that anything which he indicated to the Court was other than totally correct. This is despite the fact that the defendant was offered the opportunity to inspect the premises before any work commenced to clean the building in February 1994. At that stage, the defendant was aware that the work was being carried out and had every opportunity to take whatever inspection or samples he wished to. Likewise, Ms Nichol's qualifications are sought to be made light of but the defendant ignores the fact that she had accreditation with NATA which was the only recognised qualification at the relevant time for the work which she was required to perform. 43. It is our submission that the evidence of both Mr Rahlf and Ms Nichol ought to be accepted in its entirety."

As to the evidence of Mr Goatham, the plaintiff's written submission at trial contained one relevant paragraph as follows:

"49. The evidence of Mr Goatham and Mr Gray was important to indicate the practice of the Department of Labour at the time that the 1984 work was carried out. Clearly their evidence contradicts any assertion by the defendant that Department of Labour inspectors were present on site at this project during the course of the work. Any evidence from Mr Haddrick as to the attendance by Department of Labour inspectors at the Ashford Hospital work was hearsay. Further, having regard to the direct involvement of Mr Goatham in this project, and his direct evidence that there was no attendance at site by inspectors on this project, it is not possible, in our submission, to find that because an inspector may have attended at the Ashford Hospital site therefore it is more likely than not that one attended at the Greenhill Road site. The evidence of these witnesses is also relevant as to the competence, or otherwise, of the job which had apparently been done by the removalists in 1984/1985. On any allegation that either of them may have been adopting some form of double standard in relation to theoretical removal as compared with practical, there can be no doubt that their evidence stands as one with Mr Rahlf, Ms Nichol and Mr Haddrick that the condition which this ceiling cavity was left in was totally unacceptable."

The defendant's written submissions before the trial Judge contained the following references to Ms Nicol and Mr Goatham.

"7.2 Ms Nicol 7.2.1 Despite her high sounding former title of "Operations Manager for MP Laboratories" and an allegedly scientific approach, Ms Nicol had no real qualifications of a scientific or theoretical nature. She had simply achieved secondary school standard general chemistry and physics and otherwise had learnt to use a microscope and apply the criteria set out in an Australian Standard T99. 7.2.2 However, she did not apply her standards correctly or uniformly in assessing the 1984 work and her own 1994 work T165.28-166.04. She had adopted a perfectionist standard for the 1984 work, and a lesser standard for what she was prepared to certify for the removal work carried out in 1994, whereas she should have applied a common standard to both to enable proper comparison, if any needed to be made, and an objective standard to both to assess whether the 1994 work was simply supplementary to, and not overlapping with, the 1984 work. 7.2.3 The other significant restriction resulting from her evidence is that she did not certify that the task contracted for was performed, and the plaintiff did not otherwise prove that there was certification of removal of asbestos from the site in 1994 in any event. Indeed what she did certify was that there was still work to be done P6[III.668-671], T160.13-20. It became obvious that there simply was not certification in respect of roof removal or completion of work.] ... 7.8 Mr Goatham 7.8.1 Mr Goatham was another witness for the plaintiff who adopted double standards. His summaries of approvals given and practices said to be adopted were inconsistent with his other evidence as to what he in fact approved (e.g. sealing in the underfloor asbestos, and the acceptability of the Code as good practice). He was confused as to the statutory changes and as to his actual powers at the relevant time, the significance of his advice and the occasions on which it was given. His evidence should be treated with great caution."

It is clear, therefore, that at trial the plaintiff sought to rely upon the evidence of Ms Nicol and Mr Goatham. That reliance was continued before the Full Court when, in written submissions, the plaintiff specifically requested the Court to take into account the written submissions given at trial.

On appeal Mr Hevey focused almost exclusively on Mr Rahlf's evidence, for obvious reasons. He was the key witness. But there was no good reason for counsel for the respondent to think that Ms Nicol and Mr Goatham could be ignored, or that the Court was obliged to ignore them without inviting counsel to address the Court on their evidence. We have re-read the written outline of submissions provided by Mr Hevey for the appeal. The relevant part of it does not refer to Ms Nicol or Mr Goatham, but there is nothing in it to indicate that they are to be put to one side. We have re-read the transcript of argument before the Full Court. The same comment can be made in relation to that. At the very end of his reply, Mr Hevey, in answer to a question from the bench, said that Mr Rahlf was the only witness as to events in 1984. Given at that stage, that answer could not have led counsel for the respondent to think that Ms Nicol and Mr Goatham could be put to one side.

The duty of a court of appeal is to consider all relevant evidence given at trial. Its duty is not limited by the manner in which submissions are put. There may of course be circumstances in which the conduct of an appeal is such that certain topics or certain evidence can be treated as not before the Court. In such a case, the Court should give the parties notice before such a topic or such evidence is taken into account. But this is not one of those cases. The mere failure by an appellant to refer to evidence is not a basis for the respondent to treat the evidence as of no account. The evidence of Ms Nicol and Mr Goatham was directly relevant to one of the critical issues before the Court and, if the respondent was of the view that such evidence should not be given weight by the Court, it was incumbent upon the respondent to deal with it. In our opinion, no relevant unfairness has been suffered by the respondent.

Some evidence given by Ms Nicol was not included in the appeal books. The evidence covers five pages. The evidence of Ms Nicol that was included covers 120 pages. The missing evidence contains Ms Nicol's qualifications. The reason for its omission in unknown. No-one could be surprised if the Court should decide to consider what appears to be an inadvertently omitted part of the evidence of a witness whose evidence is included in the appeal books. There is no reason why, as a matter of fairness, the Court should have brought it to the parties' intention that it had done so and had regard to the relevant evidence. The evidence of the witness could hardly be divorced from her qualifications. The complaint under this head is, with respect, misconceived.

Evidence from another witness, Mr Bee, was wholly omitted from the appeal books. It was referred to in the reasons of the trial judge. The Court did not previously take that evidence into account, but has now read it. In our view it is of no significance for the decision that we reached. Mr Bee's inspection of the work, shortly after it was completed, was a cursory one. But in any event, if Mr Bee's evidence has any significance, it is significant to the extent that it undermines any inference drawn from Mr Rahlf's evidence. The inference to be drawn from Mr Rahlf's evidence was a key issue on the appeal. Having agreed to omit the evidence from the appeal book, the respondent cannot now complain about the Court's failure to take it into account.

The same comment applies to other evidence omitted from the appeal books.

Mr Wells QC put the argument for the respondent firmly and in an attractive manner. He said everything that could be said. In deference to his submissions we have re-read parts of the evidence given at trial relating to factual issues relevant to the present application; we have re-read the written submissions given to the trial judge; we have re-read the written outlines provided on the original appeal and the transcript of the original appeal.

We are firmly of the view that the respondent was fairly heard on the appeal. The central issues were the duty of the architect to inspect and the significance of the 1994 observations. The evidence of Ms Nicol and Mr Goatham was clearly relevant to those issues. There were no grounds for thinking that their evidence could be put to one side. The omitted evidence from Ms Nicol was clearly material to which the Court might refer in considering her evidence. It was the choice of the parties to omit other material that was omitted from the appeal books and not considered by the Court.

We have already said that the jurisdiction invoked by the respondent is to be exercised with great caution. On the other hand, the jurisdiction is not to be broken up into narrow or rigid categories. In Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 at 308 Brennan J said:

"A court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue. However, a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the course of argument before the court or is to be considered by the court as an unconceded step in determining the validity of a conclusion for which one of the parties contends." [Footnotes omitted]

That statement is material to the present case. The acceptance or rejection of the submissions based upon the evidence of Mr Rahlf necessarily involved the consideration of the evidence of Ms Nicol and Mr Goatham, as well as the arguably contrary evidence of Mr Hall and Mr Haddrick. A consideration of the evidence of Ms Nicol and Mr Goatham was necessarily involved before the Court could decide whether it should accept the argument based on that evidence. The evidence of Ms Nicol and Mr Goatham was canvassed in the reasons of the trial judge.

In Autodesk Mason CJ was in dissent. He may have taken a wider view of the Court's jurisdiction than was taken by the majority. He said that a court would exercise the jurisdiction [at 302]:

"when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law."

He seems to have been making the point that it is not necessary for an applicant to show that the situation has arisen by accident and without fault on the part of the applicant. But even that wider test is not satisfied here. We heard Mr Wells at some length on the substance of the factual issues that he said should be re-opened. We allowed both counsel to put in written submissions on the matter. Having considered all of the material, we do not accept that there has been any misapprehension as to the facts. That is not to say that we deny the possibility of error. If we have erred, that must be corrected by the High Court if it sees fit to grant special leave to appeal. Our point is that nothing that we have heard makes us think that, not having the benefit of all of the submissions that counsel for the respondent would seek to put, we were under any misapprehension as to the issues to be resolved or as to the significance of the available evidence.

Our view is that the submission for the respondent that he has not been fairly heard must be rejected. The process by which the Court arrived at its decision was a fair one, and the Court was not under a significant misapprehension about any issue of fact or law.

The parties were given leave to supplement their oral submissions by providing written submissions in relation to the criticisms of the conclusions and findings of fact made by the Full Court. This was done because when the application was heard although we heard full submissions in support of the application for the re-opening of the appeal, there was insufficient time to hear full oral submissions in support of the criticisms of the conclusions and findings of fact made by the Full Court.

To some extent the written submissions to which we now refer canvassed further aspects of the submission that the respondent was not fairly heard. We have already dealt with that matter. However, there was also a submission that the matters dealt with by the Full Court went beyond the appellant's Grounds of Appeal and the case put in support of them. We do not agree. The Notice of Appeal fairly put in issue the substance of the conclusions reached by the trial judge. As well, the practice of the profession and of this Court has long been not to treat Grounds of Appeal as strictly delimiting the matters to be argued on appeal. We are firmly of the view that in light of the Notice of Appeal, the written outline provided by the appellant and the oral submissions, the respondent was given fair notice that the matters decided by the Full Court were in issue on the appeal.

In view of our conclusion that the respondent was fairly heard, it is not necessary nor is it appropriate for the Court to consider the respondent's criticism of the findings made by the Full Court. That is a matter to be dealt with on a further appeal, should special leave to appeal be obtained.

For those reasons, we would dismiss the application.

PERRY J . I agree that the application should be dismissed for the reasons given by Doyle CJ and Martin J.

I would emphasise that the exercise of the power to revisit a decision once a matter has been fully argued and a considered judgment is delivered must be confined to extraordinary cases.

Full arguments were delivered by counsel on both sides, who must be taken to realise that however selective they might be in their citation from the first instance transcript, this Court is under a duty to have regard to the whole of the evidence.

But as the other members of the Court have pointed out, in any event, the evidence most pertinent to the view ultimately reached by the Court was in fact referred to during the course of the appeal argument.

Before parting with the matter, I must say that the fact that the existence of a jurisdiction depends upon whether or not an order has been sealed, is not conducive to the orderly disposal of litigation. It tends to emphasise form over substance and is likely to provoke an unseemly rush to seal orders. If a judgment has been obtained by fraud, it requires a separate action altogether to revisit it.[1]

If there is said to be fresh evidence which would justify another outcome, this must be raised by appeal. The slip rule[2] which is applicable where there is a clerical mistake or error arising from an accidental slip or omission, may be invoked whether or not the judgment has been entered.[3]

68 In other cases where there is alleged error it would be better that the parties be confined to their ordinary rights of appeal. While I accept that current authority is against that view, in my opinion, the principles should be reconsidered, if necessary by the legislature.

See Halsbury's Laws of Australia, title Judgments and Orders para [325-9125] (Finality of Judgments and Orders) and para [325-9130] (Fraud or Fresh Evidence).

[3] Halsbury's Laws of Australia para [325-9140].

In McAdam v Robertson [1999] SASC 169 the Full Court held that, when exercising its appellate jurisdiction, it has power to review and to correct its judgment until the order disposing of the appeal has been sealed. It was not necessary in that case to consider the Court's power to review its decision after the order disposing of the appeal is sealed. Nor is it necessary to do so in this case. The parties agree that the application should be dealt with on the basis that the order has not been sealed.

At a glance

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Judgment (79 paragraphs)

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Cases Cited (4)