Australian Broadcasting Commission v Industrial Court of South Australia

This Court held, by judgment delivered on 29 September 1977, that the two Acts were inconsistent and that, by operation of s. 109 of the Constitution, the Industrial Court had no jurisdiction to hear the application. This Court ordered that the order nisi for prohibition be made absolute, allowed the appeal and ordered the respondents to pay the appellant's costs of the proceedings in the Supreme Court and its costs of the appeal.

The appellant took no action to extract the final order of the court until, by letter dated 31 January 1985, its solicitor sent a draft order and a notice of change of solicitors to the Registry of this Court. The Registry declined to settle and seal the order made on 29 September 1977 without an order of the Court or a justice pursuant to O. 60, r. 12 of the High Court Rules. In form, the present motion seeks such an order but Mr. Dodson, counsel for the appellant, has drawn my attention to O. 44, rr. 5 and 6. Rule 5 provides:

A judgment or order shall be bespoken, and the requisite documents mentioned in rule 3 of this Order shall be left with the Registrar, within seven days after the judgment or order is finally given or made by the Court or Justice. Rule 6 provides: If a judgment or order is not bespoken and the requisite documents are not left with the Registrar within the time prescribed by the last preceding rule, the Registrar may decline to draw up the judgment or order without the direction of the Court or a Justice.

In this case, r. 5 has not been complied with and, whilst r. 6 would seem to empower the Registrar, notwithstanding non-compliance with r. 5, to draw up a judgment or order without seeking a direction of the Court or a justice, the provisions of the rule may have to be considered in the light of O. 60, r. 12. I will return to the effect of O. 44, r. 6 later in these reasons after having examined the requirements of O. 60, r. 12.

(1) In a proceeding in which a step has not been taken for one year, the party who desires to proceed shall give one month's notice to every other party of his intention to proceed.

(2) When six years have elapsed from the time when the last step in a proceeding was taken, a fresh step shall not be taken without an order of the Court or a Justice, which may be made either ex parte or upon notice.

(a) a summons on which an order has not been made shall not be deemed a step taken; and

(b) notice of trial, although avoided by non-entry or countermanded, shall be deemed a step taken.

The first question which must be considered is whether the extraction of judgment constitutes a "fresh step" within the meaning of those words in O. 60, r. 12(2). Counsel for the appellant has submitted that the extraction of judgment is not a "fresh step" and that accordingly the appellant does not require an order that the order incorporating the judgment be settled and sealed.

The word "step" is defined neither in the High Court Rules nor in the High Court of Australia Act 1979 Cth. Order 60, r. 12(1) is somewhat similar to O. 3, r. 6 of the Rules of the Supreme Court 1965 U.K., although O. 3, r. 6 requires notice of intention to proceed where a year or more has elapsed "since the last proceeding in a cause or matter" whereas O. 60, r. 12(1) requires such notice "in a proceeding in which a step has not been taken for one year".

In referring to an early predecessor to O. 3, r. 6, Lord Ellenborough C.J. said in May v. Wooding [1] :

The reason of the rule is this, that while the matter is still in controversy, the party should, after so long a lapse as four terms without any proceedings, have notice, that he may prepare himself, but when the matter has passed in rem judicatam by the verdict, the same reason does not apply. The rule of this Court therefore relates merely to interlocutory stages of the cause. No instance is stated where it has been carried farther, and there is no analogy to aid this case. 1. (1815) 3 M. & S. 500, at p. 501 [105 E.R. 698, at p. 698].

In that case a rule nisi to set aside a judgment which had been entered and signed four terms after the verdict was discharged on the basis that the relevant rule did not apply to proceedings after the verdict.

In Webster v. Myer [2] it was held that it was necessary to give a month's notice before entering judgment in default of appearance where the default had occurred more than a year before and no intervening step had taken place. See also Suedeclub Co. Ltd. v. Occasions Textiles Ltd. [3] .

1. (1885) 14 Q.B.D. 231. 2. [1981] 1 W.L.R. 1245; [1981] 3 All E.R. 671.

In Newton v. Boodle [4] a court comprising Wilde C.J., Maule, Cresswell and Williams JJ. unanimously followed May v. Wooding. In Deighton v. Cockle [5] the plaintiff had obtained an order giving him leave to sign judgment against the defendants. No further step was taken until more than a year later, when the plaintiff signed judgment against the defendants. The question which had to be decided was whether the signing of the judgment was a "proceeding" within the meaning of the rule. Vaughan Williams L.J., after having cited May v. Wooding with approval, said [6] :

I think that there was no need in this case to give the notice prescribed by the rule on the ground that this particular step, or proceeding, or whatever it may be called, was really a step or proceeding taken after judgment, and after an end of the litigation had been arrived at, and not an interlocutory proceeding. See also the judgments of Buckley L.J. [7] and Kennedy L.J. [8] . 1. (1847) 3 C.B. 795 [136 E.R. 318]. 2. [1912] 1 K.B. 206. 3. [1912] 1 K.B., at p. 211. 4. [1912] 1 K.B., at pp. 211-213. 5. [1912] 1 K.B., at pp. 213-214.

It appears that Deighton v. Cockle was followed by Philp J. of the Supreme Court of Queensland in Miller v. Miller [9] .

Having regard to the authorities which I have cited, I do not consider that the mere extraction of an order incorporating a final judgment is a "fresh step" within the meaning of those words in O. 60, r. 12(2). It is true that the English authorities were decided by construction of a provision whose point of reference is the time at which "the last proceeding" took place whereas a construction of O. 60, r. 12(2) requires a consideration of the meaning of "a fresh step". It may be that the word "step" is broader in its application than the word "proceeding". In any event, however, the extraction of an order incorporating a final judgment is not, in my view, a fresh step.

Of course, the reality of the matter is that the extraction of an order after a significant lapse of time will ordinarily be an essential prelude to further action such as the taxing of costs.

Counsel for the appellant has indicated that he does not, at this stage, seek leave to proceed to the taxing of costs and so it is not necessary for me to consider whether the taxing of costs would itself constitute a fresh step within the terms of O. 60, r. 12(2). However, it may be expedient for me to express a view on that question for the guidance of the parties should it become necessary for that step to be considered.

In my view the taxing of costs in the present case could not proceed without leave pursuant to the rule. It is unnecessary for me to examine the authorities which lead me to that conclusion but I would merely refer in passing to Lonergan v. Dixon [10] and the recent decisions in England of Pamplin v. Fraser [No. 2] [11] and Chapman v. Chapman [12] .

1. (1897) 23 V.L.R. 8. 2. [1984] 1 W.L.R. 1385; [1984] 2 All E.R. 693. 3. [1985] 1 W.L.R. 599; [1985] 1 All E.R. 757.

The question which now arises for consideration is whether, pursuant to O. 44, r. 6, I should direct the Registrar to draw up the order in this case.

In relation to the circumstances under which leave should be given pursuant to O. 60, r. 12(2), the leading authority is William Crosby & Co. Pty. Ltd. v. The Commonwealth [13] . In that case the respondents commenced an action in the High Court against the appellant for damages for breach of contract. The action was commenced in 1946 but no steps were taken in the proceedings between 1953 and 1963, when the respondents issued a summons under O. 60, r. 12 for an order that they have leave to take a fresh step in the action. Windeyer J. gave leave, saying that the rule "enables the Court to take control of the proceedings by fixing anew the times within which steps which have not been taken are to be taken" [14] . The appellant appealed to the Full Court. The leading judgment was the joint judgment of McTiernan, Kitto, Taylor and Owen JJ. After having referred to the manner in which Windeyer J. had construed the operation of O. 60, r. 12(2), their Honours said [15] :

With respect, we think the learned judge fell into error in construing the rule as he did. Its purpose is not to enable the Court to insist that an action shall proceed and to fix times within which further steps shall be taken. What it does is to forbid the further prosecution of proceedings in which no step has been taken for six years unless leave is given to continue them, and it follows that it is for an applicant for leave to show that there is good reason for excepting the particular proceedings from the general prohibition which the rule imposes. Their Honours allowed the appeal and dismissed the summons seeking leave to take a fresh step in the action. 1. (1963) 109 C.L.R. 490. 2. (1963) 109 C.L.R., at p. 491. 3. (1963) 109 C.L.R., at p. 496.

Thus the general rule is that leave should not be given unless the applicant shows "good reason for excepting the particular proceedings from the general prohibition which the rule imposes". I consider that similar considerations should apply to the question of whether, in the light of the length of time that has elapsed since the date of judgment, I should direct the Registrar, pursuant to O. 44, r. 6, to draw up the judgment. The question of whether good reason has been shown depends on all the circumstances of the case and even the fact of inexcusable delay may not preclude an applicant from showing that there is good reason for excepting the particular proceedings from the general prohibition which the rule imposes: McFadden v. McKays Sawmilling Co. [16] .

There is, in my view, good reason for making the necessary direction to the Registrar in the present case. The affidavit of Peter Colin Walsh dated 25 October 1985 deposes that in 1976 the second respondent issued proceedings in the Supreme Court of South Australia seeking a declaration that his purported dismissal be treated as null and void. The matter has been listed for hearing on 2 December 1985. Accordingly there is still unresolved litigation pending between the appellant and the second respondent. In addition, there have been negotiations from time to time between the appellant and the second respondent in an attempt to negotiate a settlement of the action in the Supreme Court of South Australia. The award of costs has been a factor in those negotiations and the failure of the appellant to follow up the order made on 29 September 1977 has been due, at least in part, to those negotiations. The pendency of the litigation between the parties in the Supreme Court supports the making of a direction pursuant to O. 44, r. 6.

In all the circumstances, it is not likely that the second respondent will suffer any undue prejudice as may have been the case had there been no issues pending between the parties.

I shall therefore rule that leave is not required under O. 60, r. 12 in order to extract the judgment but that a direction to the Registrar under O. 44, r. 6 would be appropriate. I therefore direct the Registrar to draw up the judgment. There will be no order as to the costs of this application.