I handed down judgment in this matter on Friday 20 March 2015. See Clark v the State of New South Wales [2015] NSWSC 246. The summons brought by the plaintiff was dismissed.
The plaintiff was not present when judgment was handed down, but appeared by video link from Goulburn gaol. As soon as I delivered the judgment, the plaintiff said that he "would like to make an application under rule 50C to re-open the decision." At the time of making that application the plaintiff had not been provided with a copy of the judgment. However, the plaintiff explained that he had only 14 days to make the application.
A copy of the judgment was sent to the applicant by post on Friday 20 March 2015. There was an error of no moment in that judgment. The error concerned reference to a Court of Appeal judgment relating to a litigant with a similar name to the plaintiff. The reference had nothing to do with the reasoning in the judgment.
The reference was deleted, and a revised version of the judgment was sent to the parties by post on Monday 23 March 2015. On Tuesday 24 March 2015 the revised judgment was forwarded electronically to the Goulburn gaol and my Associate contacted the gaol by telephone to ensure it had been received. The plaintiff appears again by video link today, and confirmed he had received two copies of the judgment and the error in it was pointed out to him.
The reference made on Friday 20 March 2015 by the plaintiff to rule 50C was clearly an error. I assume the plaintiff was referring to rule 50C of the Criminal Appeal Rules (NSW), which provides the Court of Criminal Appeal with a limited jurisdiction to set aside or vary an order if an application is made within 14 days. Rule 50C(4) provides that the 14-day period cannot be extended.
There is a similar power in rule 36.16 of the Uniform Civil Procedure Rules NSW (2005). Rule 36.16 also has a strict time limit of 14 days. Because of the confusion surrounding the proposed application "to re-open the decision" and because I will be conducting a criminal trial in the country during the week commencing 30 March during which the 14-day period will expire, I decided to re-list the matter today to allow the plaintiff to make his application.
Mr Clark appeared by video link and, after some delay (through no fault of Mr Clark), I received electronically a notice of motion and application to, in effect, re‑open the hearing. Counsel for the defendant agrees with me that the notice of motion should be treated as one under part 36 rule 16 of the Uniform Civil Procedure Rules NSW (2005). In particular, it is sub-rule (3A) of that provision which applies. That rule is in the following terms:
"If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered."
Counsel for the defendant initially sought to argue that subrule (3A) did not provide an avenue for the plaintiff to agitate the matter in the circumstances prevailing here. It was initially submitted that all subrule (3A) did was to provide a time limit for the powers to re-open and vary contained in 36.16 subrule (1), (2) and (3). However, counsel ultimately withdrew that submission and accepted that, at least as a matter of jurisdiction and power, the application can be dealt with on its merit.
However, counsel for the defendant relies on well-established authority that a power to re-open a decision such as this one must be used sparingly. There are a number of cases that have been decided on the issue in the past. Many of those cases relate to provisions other than 36.16 but they are all of the same nature, that is to say, a provision or power granted to a court to vary or vacate an order where the order is somehow vitiated by a misapprehension as to the law or the facts. As was said in Elliott v The Queen [2007] HCA 51, such a power is "not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases."
In that case, the Full High Court (Gummow, Hayne, Haydon, Crennan and Kiefel JJ) referred to the leading authority on the subject, which is the case of Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300. In that case the High Court was concerned with the possibility that a litigant had been denied procedural fairness because of misapprehensions in the course of the hearing. The nature and extent of the power to re-open in such circumstances was considered by all of the justices, each of whom provided us with the benefit of a separate judgment. The Chief Justice, Mason CJ, said:
"It is true that the jurisdiction is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation."
His Honour went on, at 307, to say:
"The jurisdiction to re-open is not to be exercised simply for the purpose of giving a party the opportunity to present a case to better advantage."
Brennan J at 308 said that the jurisdiction is to be exercised sparingly, for it is important to bring litigation to finality. Gaudron J, at 322, said of the power:
"Judgment has not yet been entered and, in my view, should be set aside if the interests of justice so require. However, the circumstances in which justice requires that course are, in practice, extremely rare, particularly if there has been an opportunity for full argument."
In Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 it was said at 394:
"The reason for this cautious attitude is obvious. It is stated by Mason and Wilson JJ in their judgment to be of public interest in maintaining the finality of litigation. Otherwise a determined or wealthy litigant could postpone final judgment and exhaust the rights and funds of his opponent by continuously denying the finality of the judgment and seeking to re-open disputes which that judgment was designed to close, at least as far as the courts were concerned."
The reference to the wealthy litigant may be inapposite in the circumstances of this case, but the rationale behind those comments apply equally to a litigant with little or no legal costs and a lot of time.
I have received the notice of motion and affidavit, and Mr Clark says - and I accept - that he swears to the truth of the document. I have read it and considered it. It does, as Mr Williams for the defendant submit, attempt largely to re-agitate matters that have already been subject of argument or to raise contentions that are properly to be disposed of on an appeal. The suggestions in relation to the judgment concerning misapprehensions as to the facts are really in the nature of arguments that the judgment is wrong. That is not a matter which naturally brings itself to be determined by way of a re-opening of the case.
In the course of submissions, the plaintiff reminded me that at the very outset of the original hearing, which was on 13 February 2015, he had foreshadowed the possibility of an application for adjournment or an application to vacate the hearing date. That is a matter that was specifically referred to in the judgment subject to this application. After embarking on submissions concerning an application to adjourn, the plaintiff elected not to pursue the application.
This is relevant to the consideration of whether he had a right to be heard and a hearing on the matters which he now raises as relevant to the application to re-open, set aside or vary the orders made in the judgment. Not only did he receive the benefit of a full hearing that day, but shortly afterwards he purported to make an application for re-opening of the case before judgment was delivered.
That application would ordinarily not be received favourably, for reasons which I pointed out in the judgment. But given his status as an unrepresented litigant, and the difficulties he has articulated in relation to access to materials whilst in gaol, I elected simply to proceed by hearing further submissions on that subject. I did not even give the defendant the opportunity to object to the process but simply invited the defendant to reply to that application to re-open.
On its face, the application to re-open was based around an allegation of perjury that the plaintiff made against a witness who had been called by the defendant at the hearing. There were some other residual matters, but they were not at the forefront of that application to re-open. The defendant responded briefly to that. The plaintiff then provided the court with not one but two replies, in which further expansive submissions were made. Those submissions were not responsive to the submissions of the defendant. They brought into play a number of matters which had previously been determined in earlier litigation and had little or nothing to do with the matter before me.
The present application again seeks to re-agitate matters that have already been subject to argument, and to raise submissions which are properly the subject of an appeal.
Having heard what the plaintiff has to say and having read his notice of motion and application, I am firmly of the opinion that this is an entirely inappropriate case in which the power under part 36.16(3A) should be exercised. He is, or will, attempt to re-agitate matters already argued or raise new matters that he failed to argue before, or to conduct a merits review of the judgment in question.
The application for me to set aside or vary the order or, as it is put, to re‑open the case is dismissed.
[2]
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Decision last updated: 31 March 2015