Devine Real Estate v Agha & Anor

the principles

In general terms, a judgment or order is said to be perfected when it has been entered.
Again, in general terms, when a judge recognises or is informed his or her judgement is affected by serious error, he or she may, in certain limited circumstances, reopen the judgment or order prior to entry, though some authorities doubt the existence of jurisdiction to do so after entry has occurred. It may also be accepted that the procedure in Equity over many years has been that if it were to be submitted a judge had failed to deal with a point, he or she should be asked to make additional findings: 260 Oxford Street Pty Ltd & Ors v Premetis & Anor [2006] NSWCA 96, per Young CJ in Eq at [136] (where application was made before entry of judgment).
The general rule that a court lacks the requisite power to set aside or vary a final judgment which had been entered has been affirmed by the High Court: see, for example, DJL v Central Authority (2000) 201 CLR 226 ('DJL').
But there were some limited exceptions, such as when it could be said that the interest of justice or procedural justice required it.
Reopening a case before judgment or order of course raises different principles to those relevant here. The High Court in Autodesk v Dyason (No 2) (1993) 176 CLR 300 ('Autodesk') considered the inherent jurisdiction of a court to reopen a judgment which had not been entered. Mason CJ in that case described the jurisdiction in such circumstances as a wide jurisdiction: Autodesk, 301-302.
These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue 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.
The various members of the courts identified their own examples of instances where the jurisdiction could be invoked. Their Honours all referred to situations where the judge misunderstood the facts or the law.
However, a recurrent theme throughout each judgment was the obvious need to recognise the public interest in the finality of litigation in circumstances where there was no neglect or failure on the part of the applicant and no hearing had in fact occurred, as opposed to simply reagitating a point already put.
After a judgment or order had been entered, a very different set of limited considerations were thought to apply. Much will depend on whether the court is one with inherent jurisdiction (for example a superior court of record), or where there is some statute or rule of court which expressly amplifies or modifies the general position.
Those limited circumstances might, for example, arise in the case of a default judgment or interlocutory order, where for some reason the other party was absent, where a judgment was procured by a fraud, and where the slip rule applies to some error.
But in such circumstances, it was often said that the jurisdiction should not only be cautiously exercised, but that it should be rarely exercised. This was stated emphatically by Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529, 539. His Honour was of the view that a court had no further power in relation to the proceeding once orders were entered. This is to be contrasted with Mason CJ's views in Autodesk discussed above.
The High Court considered this notion in the context of a superior court of record in Burrell v The Queen (2008) 238 CLR 218 ('Burrell'). In that case, the Court of Criminal Appeal in New South Wales, having given judgment and where orders had been entered, thought it had done so erroneously and purported to set aside its orders and make fresh ones. The High Court determined the Court of Criminal Appeal had no power to reopen even though it believed it had made serious errors of fact as the Court's jurisdiction was essentially statutory, and, as such, did not have power to reopen the appeal as it had.
In the course of their judgment, the plurality said there were some general considerations that applied in such cases of purported reopening.
First, in the case of each court, any governing statute and any express or implied powers need to be considered as opposed to a court's "entrenched jurisdiction": Burrell at [14] citing DJL at [43].
Secondly, it was important to recognise the fundamental principles about finality of litigation and that controversies once resolved are not to be reopened except in limited and defined circumstances.
Thirdly, that the principle as to finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided but has wider purposes. In particular, the principle of finality serves "as the sharpest spur to all participants in the judicial process, judge, parties, and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible it is often difficult and time-consuming and it is almost always costly".
Here there are rules of court to cater for a variety of circumstances.
For example, a judgment or order may, even if entered, be set aside if it was made irregularly, illegally, or against good faith (UCPR r 36.15).
In certain instances, a judgment or order can be set aside before entry of that judgment or order (UCPR r 36.16(1)), or after entry in the case of a default judgment in the absence of a party, or in certain circumstances relating to the possession of land (UCPR r 36.16(2)).
There are limitations on setting aside judgment or order if there has been a determination any claim, or a claim has been dismissed (UCPR r 36.16(3)).
Either on the motion of a party or on its own motion a court can set aside any judgment or order even if entered as long as the motion is brought within 14 days of the entry (UCPR r 36.16(3A) and (3B)). But the court cannot extend that time limited by subrule (3A) or (3B).
The inherent jurisdiction of the court such as it may be is otherwise unaffected (UCPR r 36.16(4)).
The Court of Appeal in Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133 ('Meredith') considered these rules and expressed the view that, notwithstanding r 36(4), the court had no inherent power to reopen orders which had been entered as opposed to the express situations contemplated by the rules. The Court expressly applied Bailey v Marinoff (1971) 125 CLR 529 and stated that the clear purpose of the rules was to allow a window, for example of 14 days only, and that that reflected the need for judgments and orders to be final and certain in their operation.
Indeed, as a result of the decision of the High Court in Burrell and the Court of Appeal in Meredith, there is a need for careful attention to the statutory regime in which the superior court of record conducts its affairs in order to accurately detect the repository of inherent or "entrenched" powers available, see also Wong v Van Vlymen & Ors [2020] 1170 at [25]-[36].

consideration

Judges at the trial level and the intermediate appellate level sometimes make errors. Some of these errors can and should, if at all possible, be corrected as soon as possible.
It should be noted that in the adversarial system courts administer the parties' chosen issues and decide the case with to very large extent on the evidence they decide to deploy.
Generally, the flow of the evidence, the emphasis placed on it, and the findings each side invites a judge to make are a matter for the respective legal representatives of the parties. Issues can be raised and then abandoned or not pressed. The court is entitled to expect that, consistent with the professional advocates' paramount duty to the court, all relevant matters of law of fact are clearly and hopefully concisely articulated. It is incumbent upon legal representatives to ensure, in their clients' interests, that the judge clearly understands what legal and factual outcomes are sought on party's behalf.
Upon the delivery of the reasons for judgment, the Court is again entitled to expect that the reasons will promptly be read and if there is any perceived error of the sort susceptible of correction it will again promptly be brought to the judge's attention so a decision can be made as to whether it can or should be corrected and, if so, how that is most fairly and efficiently done.
The circumstances giving rise to the Notice of Motion stem from remarks made by the Court of Appeal in its hearing of the appeal on 23 and 24 July 2020 about the absence of a finding or adequate findings on my part in my judgment back in June 2019 in relation to Mr Coombe the second defendant.
It would seem that the plaintiffs were untroubled, disinterested, or simply oblivious to the absence of such findings until the issue was raised by the Court of Appeal. They submit that, through no fault of their own, they simply never had the matter drawn to their attention by their opponents nor any court, and hence should be regarded as without fault in the relevant sense.
The objective of course of this Motion is to seek leave to reopen for the express purpose of having the Court make findings adverse to Mr Coombe (formerly the second defendant) so as to make him liable in damages.
The affidavit evidence filed for the plaintiffs on this Motion does not reveal precisely when, if at all, prior to debate in the Court of Appeal, that the inadequacy of my findings was brought to their attention. However, during debate before the Court of Appeal, the matter clearly emerged with clarity.
However, the evidence Mr Palmer, solicitor for the plaintiffs, puts before the Court does indicate that there was clearly some detailed discussion as to the form of the declaratory relief which appears resultant to the matter of consent. There is no explanation as to why it has taken so long to make this application. In neither affidavit of Ms Jemmeson's does she indicate when she read the judgment at first instance or what steps she took precisely apart from alluding to the possibility of amending the Statement of Claim on the question of damages.
I accept that the plaintiffs did not file a notice of contention, but they were placed squarely on notice in the course of the hearing before the Court of Appeal that the Court was concerned about the existence or not of evidence to support my findings and declarations. The plaintiffs' Counsel was, it seems, content to deal with that issue in the course of argument, and did not formally seek leave, even belatedly, to file a notice of contention to protect their position. Subject to any question of costs and given the way in which the point had arisen, in my view that course was clearly open.
For any number of reasons, I am of the view that this application should fail.
First, I do not consider UCPR r 36.16 is applicable.
UCPR rule 36.16(1) only applies where the Court is invited to set aside or vary a judgment or order before the entry of such. That did not occur here.
UCPR r 36.16(3) does not apply if what has occurred involves a determination of "any claim for relief, or… any question… arising on any claim for relief". Here, there is no reason in my view on the authorities appropriately understood to describe my determination as it were of the separate question as falling outside r 36.16(3). I determined the question of liability which in turn was the subject of review by the Court of Appeal. As a matter of law, but for all practical purposes, the issue of liability has been determined, and is not, as the plaintiffs submit, at large. In my view, the very language of UCPR r 36.16(3) does not speak of final relief as such, as that concept is discussed in other contexts when the comparison is made between final and interlocutory relief. The subrule simply refers to the determination of any claim for relief or the determination of any question (my emphasis). The alternative, of course, concerns dismissal of proceedings, not relevant here. What I did precisely here was to determine a question of liability, corrected albeit by the Court of Appeal. But the question of liability has, in accordance with the language of that subrule, been determined. It is not to be trivialised, as plaintiffs' Counsel suggested, as merely a step along the way. This construction is entirely consistent with the underlying policy of achieving finality in litigation. In my view, therefore, the plaintiffs' attempt to call in aid subrule (3) is inappropriate.
This approach is entirely consistent with the approach of Macfarlan and Gleeson JJA in Boateng v Dharamdas [2019] NSWCA 233 at [18]-[19]. The plaintiffs therefore must rely upon the Court exercising a discretion to permit them to reopen the issue of liability against Mr Coombe.
As a fallback, the plaintiffs seek to invoke s 14 of the Civil Procedure Act 2005 (NSW), which permits a court, if appropriate in the circumstances, to order that any requirement of rules of the court to be dispensed. The argument was not extensively developed before me but in any event, given the history of this matter, I do not think it is appropriate to dispense with the rules as requested. The main reason is the extensive delay since I gave judgment and, in addition, a number of the considerations which I discuss below in the context of discretion.
The current state of play is that the plaintiffs have a right to compensation against Mr Agar (the first defendant) within the scope of that liability which the Court of Appeal has left open. Therefore, they have a defendant against whom they can recover damages. I did not make any separate findings in my judgment against Mr Coombe such that he would be separately responsible for any head of damage, for example as to any commercial opportunity lost by the plaintiffs as a result of his particular contractual or other breaches. However, to bring Mr Coombe back into the litigation now and make him personally liable (at least potentially) for losses would be obviously prejudicial to him.
I should note in passing that nowhere in Ms Jemmeson's affidavits nor Senior Counsel's submissions for the plaintiffs can there be detected any specificity as to the volume of evidence that would be sought to be deployed against Mr Coombe. Senior Counsel for the plaintiffs accepted that Mr Coombe would be entitled to give fresh consideration to how and to what extent he would conduct any defence. Given the volume of material I received during the trial, including evidence from many witnesses and voluminous documentation, it is any wonder that the scope of any new trial is impossible to determine at this stage. Nevertheless, the scope of any potential litigation, its costs, and any delay in it occurring are clearly relevant considerations on the exercise of discretion. Given the history of this litigation, my expectation is that the matter would continue to be hard-fought and hence expensive and lengthy for all concerned.
The delay in bringing this application is neither satisfactorily or adequately explained. Even assuming one could comfortably arrive at the opinion that the plaintiffs in all circumstances have acted without fault and are hence blameless, their application in my view is antithetical to the administration of justice. Whether or not a party can be properly described as being at fault in such circumstances is in any event only one of several relevant considerations. Modern courts cannot, and perhaps should not, indulge afterthoughts or reflections, especially those that occur many years after the relevant events. The choice in UCPR r 36.16 of a 14-day window to bring a motion is a salutary reminder that parties must promptly move if they are to move at all.
The moment the Court of Appeal showed an interest in the relevant issue should have signalled, if only out of self-preservation, a need for the plaintiffs to address the matter there and then or very soon thereafter in a meaningful way. Counsel for the plaintiffs chose to address the issue in oral argument, on the run, and that is a forensic choice counsel is sometimes called upon to make. Having made that forensic choice, in my view, as a matter of fairness, the plaintiff should be stuck with it.
I also observe that I in my 2019 judgment made serious findings about both defendants, in particular about the first defendant, for example at [281]-[289]. I also made findings about the second defendant's complicity in the conduct of the first defendant, for example at [381]-[392].
In those circumstances, serious consideration would have to be given as to whether in the light of those findings I could conduct any rehearing (if it was ever ordered) concerning the matters in the relevant paragraphs of the plaintiffs' pleadings: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [147]; Johnson v Johnson (2000) 201 CLR 488 at [10]-[13]. Senior Counsel for the plaintiffs conceded as much in his submissions.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (13)

Cited By (2)