Bailey v Marinoff

High Court of Australia|1971-07-01|Before: Gibbs JJ, Menzies J

For the reasons stated I am of opinion that the appeal should be allowed.

The present respondent, Dimiter Marinoff, was the appellant in an appeal to the Court of Appeal of the Supreme Court of New South Wales and the present appellant, Harry R. Bailey, was the respondent to that appeal. The formal material before us does not reveal the nature of the judgment appealed from, what were the grounds of appeal or whether Marinoff was guilty of culpable delay in prosecuting the appeal but it does appear that on 10th February 1970 the Court of Appeal made an order in the following terms:

It is ordered that the Appellant file and serve the appeal books herein on or before the 31st day of March 1970 and it is further ordered that if the Appellant does not file and serve the appeal books herein on or before the 31st day of March 1970 the appeal is to stand dismissed for want of prosecution and it is further ordered that the costs of this motion be costs in the appeal of the Respondent. The order was made in intended exercise of the power conferred by r. 22 of the Court of Appeal Rules which provides as follows: The Court or a Judge of Appeal may fix any time peremptorily for the doing of an act required to be done by an appellant by or under these rules, and may order that upon non-compliance his appeal shall stand dismissed for want of prosecution, and may make such order as to the costs of the appeal in that event as appears just. The order was taken out by the respondent and signed and sealed on 5th March 1970. After the order was pronounced Marinoff's solicitor proceeded with due diligence to order the requisite number of copies of the appeal books but although he apprised the law stationers of the urgency of the matter and received a number of assurances that the books would be ready in time, only four copies were forthcoming when the due date, 31st March, arrived. The four copies were filed and lodged in the registry on that day but further copies to serve on Bailey's solicitors could not be obtained until 6th April and they were served on that day. Plainly the condition of the order made by the Court of Appeal was not fulfilled and the effect of the order was that the appeal then stood dismissed for want of prosecution. However, on 28th September 1970, the Court of Appeal ordered that the filing and service of appeal books in fact effected should be deemed a sufficient compliance with the requirements of the order of 10th February 1970 and further ordered that a note of the making of the order be endorsed on the order of 10th February and that Marinoff pay Bailey's costs. The question that falls for our decision is whether the Court of Appeal had jurisdiction to make such an order. It is not contended that the Court of Appeal was in error in the manner in which its discretion was exercised if the order was within its discretion to make.

It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it: In re Suffield and Watts; Ex parte Brown [1] ; In re Swire; Mellor v. Swire [2] ; Preston Banking Co. v. William Allsup & Sons [3] ; Woods v. Sheriff of Queensland [4] ; Ivanhoe Gold Corporation Ltd. v. Symonds [5] ; MacCarthy v. Agard [6] ; Arnett v. Holloway [1] . The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court. Indeed, as the way in which I have already stated the rule implies, the court has the power to vary an order so as to carry out its own meaning or to make plain language which is doubtful, and that power does not depend on rules of court, but is inherent in the court: Lawrie v. Lees [2] ; Thynne v. Thynne [3] . Further, it has been held that a court may amend a part of a judgment or an order which is "not the operative and substantial part": Pearlman (Veneers) S.A. (Pty.) Ltd. v. Bernhard Bartels [4] ; such an amendment, which may be far from being merely formal in its effect, could, as Singleton L.J. pointed out in Thynne v. Thynne [1] , only be made under the inherent jurisdiction. Similarly the rule that a court may review an order made ex parte has been said to be "a rule of natural justice" (Woods v. Sheriff of Queensland [2] ) or "an elementary rule of justice" (Owners of the s.s. "Kalibia" v. Wilson [3] ) and this can only mean that the power is traceable to the inherent jurisdiction. Moreover, it has been held that in certain cases circumstances occurring since the judgment may warrant the making of a supplemental order: Preston Banking Co. v. William Allsup & Sons [4] and see Prestney v. Corporation of Colchester [5] and this seems to be another example of the inherent power.

(1888) 20 Q.B.D. 693. 2. (1885) 30 Ch.D. 239. 3. [1895] 1 Ch. 141. 4. (1895) 6 Q.L.J. 163. 5. (1906) 4 C.L.R. 642. 6. [1933] 2 K.B. 417. 7. [1960] V.R. 22. 8. (1881) 7 App. Cas. 19, at pp. 34-35. 9. [1955] P. 272, at p. 313. 10. [1954] 1 W.L.R. 1457. 11. [1955] P., at p. 295. 12. (1895) 6 Q.L.J., at p. 164. 13. (1910) 11 C.L.R. 689, at p. 694. 14. [1895] 1 Ch., at p. 144. 15. (1883) 24 Ch.D. 376.

A similar, but distinct, rule has been evolved in cases in which an order has been made dismissing an action unless a condition, such as the delivery of a statement of claim or of particulars or of answers to interrogatories, is fulfilled within a specified time. Where in such a case the time has expired without fulfilment of the condition, it has been held that the judge who made the original order has no jurisdiction to make a subsequent order extending the time for fulfilment with the condition: Whistler v. Hancock [6] ; Wallis v. Hepburn [1] ; King v. Davenport [2] . Where the time has run out and the condition has not been fulfilled the action is regarded as being at an end and "the Court cannot, after the action is gone, entertain an application the result of which would be to set it on foot again": Script Phonography Co. Ltd. v. Gregg [3] . However, in cases such as these there was found a way of avoiding the injustice which the rigidity of the rule might otherwise have caused. It has been held that the court may entertain an application for extension of time for appealing against the order to dismiss the action and after the time for appealing has been extended may on appeal vary the order by enlarging time for fulfilment with the condition: Burke v. Rooney [4] ; Carter v. Stubbs [5] ; Johnson & Co. Ltd. v. Clifford [6] ; Nixon v. W. Phelan & Son Pty. Ltd. [7] ; and see MacCarthy v. Agard [8] . According to the Annual Practice 1970 (p. 296) this is frequently done in proper cases in England. It follows that in the case of a judgment made at first instance, although it might be right to say that "the court was enslaved by its own decree" (Thynne v. Thynne [1] ), an appellate court has power to strike off the fetters. According to the argument of the appellant in the present case however, an appellate court which has made an order conditionally dismissing an appeal must remain permanently enslaved by its own decree because there is no other tribunal which can free it from its self-imposed bondage.

(1878) 3 Q.B.D. 83. 2. (1878) 3 Q.B.D. 84 (n). 3. (1879) 4 Q.B.D. 402. 4. (1890) 59 L.J. Ch. 406, at p. 407. 5. (1879) 4 C.P.D. 226. 6. (1880) 6 Q.B.D. 116. 7. (1904) 7 W.A.R. 130. 8. [1960] V.R. 94. 9. [1933] 2 K.B., at p. 428 (n). 10. [1955] P., at p. 315.

There are two cases in which a question similar to that which arises in the present appeal has been discussed in relation to an order made by an appellate court. In Meier v. Meier [2] , a wife who had obtained a decree nisi for divorce against her husband applied for an order for security of her costs of an appeal by her husband and the Court of Appeal directed that security should be provided by a specified date and that in the event of failure by the appellant to provide security, the appeal should stand dismissed. Owing to a mistake on the part of the appellant's solicitors, payment of the security was not made by the date ordered, with the result that the appeal against the decree nisi stood dismissed, and in due course the decree was made absolute. On learning the facts the appellant applied to the Court of Appeal to set aside the decree absolute and reinstate his appeal but it was held that there was no power in the Court to do so. That case is clearly distinguishable from the present, because it was there necessary to set aside a decree absolute before the appeal could be reinstated. Scott L.J. clearly based his judgment on this consideration. He said [3] :

In my view, the principle on which Parliament has treated the decree absolute as sacred, applies in the present case and must be acted on absolutely, because no sufficient reason exists for departing from it: there is no ground for the exercise of any inherent jurisdiction which the court may have and the application must, therefore, be refused. Although Somervell L.J. did not expressly found his judgment on the fact that a decree absolute had been taken out, it seems to me that this was implicit in what he said in the following passage [4] : The first question is whether the court has jurisdiction to deprive a party of rights lawfully acquired under an order of this court in circumstances of the most complete regularity on the part of the party whom the court is asked to deprive of his rights. It is said that there is inherent jurisdiction to do this but I should want specific authority on the point. There is no such authority and that fact weighs very strongly against the submission that such a jurisdiction exists. In principle, I think it is impossible to imply such a jurisdiction and, the application must therefore be dismissed. The third member of the court, Evershed L.J., as he then was, based his judgment, as Scott L.J. had done, on the fact that what was sought was something more than a mere variation of the original order. He said [1] : I prefer not to attempt a definition of the extent of the court's inherent jurisdiction to vary, modify or extend its own orders if, in its view, the purposes of justice require that it should do so. But the present case is not merely concerned with the variation or the modification of the form of an order as such, but relates to a particular order under which, in the events which have happened, a pending appeal properly stood dismissed and the petitioner in the divorce proceedings acquired the status of a person in whose favour a decree absolute for divorce had been granted. To justify this court in taking the step of putting back the clock would require something more than a variation of its order under its inherent jurisdiction. It seems to me significant that the Court of Appeal did not hold outright that the inherent jurisdiction of the Court did not extend to permit the variation of the order which it had made. The words of Lord Evershed particularly suggest that he thought, although he did not decide, that the order might have been varied under the original jurisdiction if a mere variation had been all that had been required. His words were referred to in Thynne v. Thynne [2] , by Morris L.J., as he then was, who said: In addition to powers resulting from rules of court, it is clear that there are necessary powers which are inherent in the jurisdiction of the court. It would, I think, be undesirable to limit the scope of these powers as a result of any words which describe them. His Lordship went on to indicate agreement with the opening remarks of Lord Evershed in Meier v. Meier [3] . 1. [1948] P. 89. 2. [1948] P., at p. 94. 3. [1948] P., at pp. 94-95. 4. [1948] P., at p. 95. 5. [1955] P., at p. 313. 6. [1948] P. 89.

The second case arose in this Court: Goodwin v. Southern Tablelands Finance Co. Pty. Ltd. [4] . On 24th April 1968 the Full Court ordered that appeal books be lodged and certain documents served on the respondent on or before 30th June 1968 and further ordered "that in default of compliance with this order by 30th June 1968 or such later date as a Justice may appoint the appeal shall stand dismissed". The applicant having failed to comply with the order made application "for an order that the order made herein on the 26th April 1968, be varied by extending the time for the lodging of the appellant's Appeal Books herein " The application came before Kitto J. on 16th July 1968 and was dismissed. Kitto J. took the view that the application should be refused on the merits but he further said that as at present advised he did not see how he could, even if he had wished, grant an extension of time at that stage. He said:

There is no pending appeal in this Court in which I can act. The appeal stands dismissed by order of the Full Court and, that being so, I cannot revive it and I do not think the Full Court could revive it. An appeal brought from this judgment and order of Kitto J. was, on 15th August 1968, dismissed by the Full Court. In their joint reasons the Court (Menzies, Windeyer and Owen JJ.) said: As the hearing proceeded it became apparent that what the appellant really wants is to vary the order made by the Full Court on 24th April 1968, by virtue of which the appeal was dismissed. It is not within the power of this Court to vary that order. Once the appeal was dismissed, that was the end of the matter. It may be noticed that the applicant did not in form apply to a Justice to appoint a later date pursuant to the power given by the order of 24th April 1968, and it may have been assumed that the power ceased to be available after the time for fulfilment of the condition had expired. The case is technically distinguishable from the present because the order which it was sought to vary was made by the Full Court, whereas the application to vary it was made to a single judge. It is true that the reasons given both by Kitto J. and by the Full Court are inconsistent with the conclusion reached in the present case by the Court of Appeal, which, it may be mentioned, was not aware of the existence of the decision. However, the applicant (the appellant before the Full Court) appeared in person both before Kitto J. and before the Full Court and the transcript of the proceedings on the appeal shows that the appellant cited no relevant authorities and that counsel for the respondent was not called upon to address the Court. (The transcript of argument before Kitto J. is not available.) In these circumstances, with the greatest respect, although the actual decision in that case was doubtless correct, I do not consider that we should regard ourselves as bound by the reasons given for it to reach a conclusion in the present case different from that to which our own consideration of the principles and the authorities may lead us. 1. (1968) 42 A.L.J.R. 309.

The authorities to which I have referred leave no doubt that a superior court has an inherent power to vary its own orders in certain cases. The limits of the power remain undefined, although the remarks of Lord Evershed already cited suggest that it is a power that a court may exercise "if, in its view, the purposes of justice require that it should do so". Why should the limits of the power be drawn so narrowly as to preclude an appellate court from varying a conditional order to dismiss an appeal after the time for compliance with the condition has expired? I can think of only two reasons that may be suggested for holding that the inherent power of an appellate court does not extend to permit such a variation to be effected, but in my opinion neither of those reasons is satisfactory. First, it may be said that the authority of Whistler v. Hancock [1] , and similar cases requires this conclusion. But in those cases the interests of justice did not render it imperative that the judge should have power to vary his own order, since there was power in an appellate court notwithstanding the lapse of time to remedy any injustice. Where, however, the order has been made by the appellate court itself the position is different, since if the appellate court cannot grant relief, none is available. The fact that this Court would have power to grant special leave to appeal from the order of the Court of Appeal made on 10th February 1970 may be put aside, having regard to the established principles that govern the grant of special leave. There is therefore a sound reason for refusing to extend decisions given in relation to orders made by single judges to the case of this order made by the Court of Appeal. Secondly, it may be said that there is some principle that once an appeal has been dismissed it is finally at an end and that the court which dismissed it has no power to vary its order so as to bring it into existence again. Although cases such as Whistler v. Hancock [1] and Script Phonography Co. Ltd. v. Gregg [2] may appear to support such a principle, it is nevertheless firmly established that an action which has come to an end by reason of a judge's order conditionally dismissing it can be set on foot again by the order of an appellate court. If, to adopt the metaphor not infrequently used in these cases, the action becomes dead when the order dismissing it takes effect, it is not beyond revival. Indeed, to say that the appeal is dead, or at an end, seems to me, with all respect, to be beside the point, which is whether the inherent jurisdiction of the court permits it to vary the condition of an order dismissing an appeal after the condition has taken effect, and to say without more that because an appeal is at an end therefore no further order can be made is to beg the question. Clearly such an order might have been varied on the day before the condition took effect and it would seem strange if the power of the court were so limited as to make the order incapable of variation even one day after the condition had taken effect, no matter what unexpected misfortune might have prevented the party affected from complying with the condition. However I can see no reason in principle, and certainly none in justice or convenience, why an appellate court cannot vary the condition of an order dismissing an appeal, notwithstanding that the appeal has been dismissed before the variation is effected; the appeal may be at an end, but the power of the court remains, and an exercise of the power can reinstate the appeal.

(1878) 3 Q.B.D. 83. 2. (1878) 3 Q.B.D. 83. 3. (1890) 59 L.J. Ch. 406.

In the present case the Court of Appeal made an order varying its own former order in a matter of procedure for the purpose of giving effect to what it saw as the justice of the case. The order which it made was not contrary to any statute or rule of court. In my opinion neither authority nor principle constrains us to hold that the order so made was beyond the inherent jurisdiction of the Court.

High Court of Australia Barwick C.J. Menzies, Owen, Walsh and Gibbs JJ. Bailey v Marinoff [1971] HCA 49

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