The finality principle
22 Although precise definition of the boundaries of judicial power is impossible, it has long been recognised that the essence of judicial power, particularly the judicial power of the Commonwealth derived from Ch III of the Constitution, includes the making of determinations that are binding and conclusive: Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ, R v Davison (1954) 90 CLR 353 at 387 per Taylor J and Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 at 542-543. The final and binding effect of a judicial determination forms the basis of a number of principles. A judgment of a superior court of record is binding on the parties to the proceeding in which it is given. It cannot be ignored, or treated as a nullity, whatever defects there might be in it. Even if the judgment is beyond the jurisdiction of the court giving it, this does not deprive it of its binding effect, and it must be obeyed unless and until properly set aside, eg on appeal: Cameron v Cole (1944) 68 CLR 571 at 590 per Rich J, 598 per McTiernan J and 607 per Williams J, and Re Macks; Ex parte Saint [2000] HCA 62 (2000) 204 CLR 158 at [20] and [53] per Gaudron J, [148] per McHugh J, [216] per Gummow J, [255] per Kirby J and [334]-[344] per Hayne and Callinan JJ. The use of the word "nullity" by Watkins LJ, giving the judgment of the Court of Appeal in Iqbal Begum v R (1985) 93 Cr App R 96 at 100, to describe a plea, trial, conviction and sentence in a criminal case in the Crown Court that had miscarried because the interpreter provided spoke a different language from the first language of the accused, was clearly erroneous, if it was intended to mean that the trial could be treated as if it had not occurred. At least in relation to a judgment of a superior court of record in Australia, no such description could be applied, if it had such a meaning.
23 In this respect, a judgment of a superior court differs from a decision of an administrative decision-maker, a decision not made in the exercise of judicial power. If the decision is the result of jurisdictional error on the part of the decision-maker, it is "properly regarded, in law, as no decision at all": Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 at [51] per Gaudron and Gummow JJ and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Thus, if an administrative decision-maker discovers that there has been jurisdictional error (including an inadvertent denial of procedural fairness), the decision-maker may disregard the purported decision already made and proceed to perform the statutory function to make a decision. This was what occurred in Bhardwaj. By contrast, the principle that a judgment of a superior court is binding applies equally to the court itself, which cannot choose to ignore a judgment and proceed to decide the case again. Unless and until the judgment is set aside according to law, it remains binding, not only on the parties, but also on the court itself.
24 The binding nature of judgments also underlies the principles that prevent the re-litigation of controversies already litigated to a conclusion. The principle described by the Latin term res judicata prevents a second proceeding being brought where a judgment has been entered in a previous proceeding in relation to the same cause of action: Jackson v Goldsmith (1950) 81 CLR 446 at 466 per Fullagar J. This principle can be used to bar not only controversies that were actually determined in a previous proceeding, but also those that ought to have been determined: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. It is the res judicata principle that underlies the rule against double jeopardy in the criminal law. A plea of autrefois convict or autrefois acquit is available to prevent a person from being charged again with an offence of which the person has necessarily been convicted or acquitted in a previous proceeding, even if not precisely the same offence. In addition to the principle of res judicata, specific issues that have been necessarily determined, so as to found a judgment, may not be re-litigated in a further proceeding, even if that proceeding involves a cause of action not determined previously: Blair v Curran (1939) 62 CLR 464 at 531-532 per Dixon J. Provided that the circumstances of the verdict of a jury in a criminal trial make it clear that the jury must have decided a certain issue, a charge depending upon the determination of that issue in a different way cannot be sustained, even though it is a charge in relation to a different offence from that formerly charged: Mraz v R [No. 2] (1956) 96 CLR 62.
25 The exceptions to the binding effect of a judgment of a superior court of record are not great in number. An obvious one is that a judgment may be set aside or varied on appeal. Such a course is precluded in the present case by the fact that Mr Eastman has already appealed to the High Court of Australia from the judgment of the Full Court, and his appeal has been finally determined by the High Court. The measures that may be taken by a court in respect of its own judgments are reflected in the provisions of O 35 r 7, set out in [15]. Aside from fraud, consent, variation of an order so that it reflects the actual intention of the Court or to correct an accidental slip or omission, and the special cases of injunctions and the appointment of receivers, orders of the Court can only be set aside if made in default, or if they are otherwise interlocutory.
26 The definition of an interlocutory order is not altogether clear. Such a description is normally applied to an order dismissing a proceeding, or allowing the entry of judgment, made in default of appearance, or in default of the taking of some required step. Even so, it might be impossible to reopen such an order once it is perfected. Bailey v Marinoff (1971) 125 CLR 529 was a case in which the New South Wales Court of Appeal had made a self-executing order that an appeal be dismissed if appeal books were not filed and served on or before a particular date. The appeal books were not served until a later date. The appellant applied for an order extending the time for serving the appeal books and restoring the appeal to the list for hearing. The Court of Appeal effectively granted that order. The High Court held that the Court of Appeal had no jurisdiction to grant that order, because no appeal existed any longer, the order dismissing it having been perfected. It may be that the proper application to make in such circumstances would be an application to set aside the perfected order, on the basis that it was interlocutory, as a preliminary to making an application for the orders that were sought in that case.
27 In any event, interlocutory orders are usually contrasted with orders made as a result of a hearing "on the merits". This latter phrase is often used but rarely defined, and is perhaps incapable of exhaustive definition. It does appear to involve the process of determination of the issues raised in a proceeding. In the context of criminal proceedings, a hearing on the merits has been described as a hearing in which "the dispute between the parties [was] really fought out upon the hearing of the summons and the charge dismissed", in contrast to a situation in which "the charge [was] withdrawn, so that there was no real trial": Reed v Nutt (1890) 24 QBD 669 at 673 per Lord Esher MR, with whom Lord Coleridge CJ agreed. In Bridie v Messina (1965) 66 SR (NSW) 446, the Full Court of the Supreme Court of New South Wales held that the dismissal of an information in a criminal proceeding upon a successful plea of autrefois acquit was a hearing on the merits. At 453, Sugerman J, with whom Maguire J agreed, said:
A hearing on the merits is one in which the issues of fact or law, or both, between the parties are fought out to a final conclusion binding upon the parties - a decision "upon the merits". It does not seem to matter that the determination of one or some only of the issues may suffice to decide the whole controversy, or that the issues may be decided on facts which are the subject of admission and not of dispute or even of evidence. Without purporting to make an exhaustive enumeration, or to state all the qualifications which may be necessary, a hearing may be said not to have been on the merits if it resulted in a decision which was not final but analogous rather to a non-suit, or if, for some such reason as withdrawal, want of jurisdiction, non-compliance with some preliminary requirement, defect in the information, or other technical or procedural informality or irregularity, it did not result, or could not have resulted, in a decision on the merits, final in its nature and capable of supporting (in criminal cases) a plea of autrefois acquit or autrefois convict.
28 In Burgess v John Connell-Mott, Hay and Anderson Pty Ltd (1979) 39 FLR 444, a Full Court of this Court held that an acquittal as a result of a successful contention that there was no case to answer a criminal charge gave rise to no right of appeal. At 445-446, Smithers J said:
It was decided in Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) that upon the proper construction of s. 24 (1) (a) the appellate jurisdiction of the Full Court of this Court does not extend to appeals from judgments of acquittal in criminal matters by a court of competent jurisdiction after a hearing on the merits.
At 446, Smithers J said:
An accused person is acquitted other than on the merits when the proceedings against him are dismissed on some point which involves no adjudication on the facts or on the application of the law to the facts to determine his guilt or innocence. The typical case is one where the relevant tribunal refrains from investigating the merits on the ground that it considers it lacks jurisdiction...There is an apparent qualitative difference between such a case and that where according to the appropriate trial procedures the facts have been examined and a judgment of guilt or innocence given according to the court's determination of the facts and the relevant law.
Smithers J later said at 446 that the judgment with which the Court was concerned in Burgess was "a judgment on the merits because it was obtained after consideration of all the evidence put against the respondent and the relevant law." Evatt J at 456 and Keely J at 457 each expressed the view that the hearing had been on the merits.
29 The significance of Bridie and Burgess is that there can be a binding determination of a criminal proceeding on the merits without a determination of every single factual or legal issue that has arisen, or may have arisen if it had been raised. The relevant distinction appears to be between, on the one hand, a judgment on the merits, in the sense of a determination after a hearing in which the facts and the legal issues have been investigated to the extent necessary to found a determination and, on the other hand, an interlocutory judgment, made without such a hearing, for some reason other than the outcome of a determination of the necessary facts and legal issues. A judgment of the latter kind can be reopened, even if perfected. A judgment of the former cannot, unless not perfected.
30 Even the power to reopen a judgment that has not been perfected is exercised sparingly. In Autodesk Inc v Dyason [No. 2] (1993) 176 CLR 300, the High Court dismissed an application to vacate its own judgment on the ground that the respondents to the proceeding before it had not had a proper opportunity to be heard on certain issues. In his dissenting judgment, Mason CJ at 302-303 set out the circumstances in which a judgment of the High Court (as an ultimate court of appeal) could be revisited, when it had not been perfected:
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. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment.
However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.
Brennan J at 309-310 said:
It is one thing to reopen an appeal after judgment if the Court has reached a conclusion by adopting a proposition of fact or law which the unsuccessful party has not had an opportunity to argue. In that event, natural justice is denied and it can be said that the Court's jurisdiction to hear and determine the matter is not exhausted. But that is not the present case. Here the ground on which the appeal was determined had been argued in the courts below and had been the subject of submissions in this Court. The appeal was determined after it was fully heard. That being so, I find no jurisdiction to set aside the judgment already pronounced merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law. In University of Wollongong v Metwally [No. 2] this Court said:
"Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."
Brennan J did not appear to draw a distinction between a judgment that had been perfected and one that had not. Dawson J at 317 expressed the view that a judgment not perfected could be revisited by a party who had been denied natural justice, in the sense of having not been heard on a vital issue, without fault of that party. Deane J, who also dissented, appeared to accept at 313-314 that lack of a proper opportunity to place before the High Court full submissions about an issue justified revisiting the judgment. At 322, Gaudron J expressed the wider view that a judgment that had not been entered should be set aside if the interests of justice so require. Her Honour did point out that the circumstances in which that power would be exercised are "in practice, extremely rare, particularly if there has been an opportunity for full argument." It is apparent from Autodesk that any power of an appellate court to reopen a judgment, even before its order has been perfected, cannot be invoked as of right by a party. The power will be exercised very sparingly.
31 It may also be the case that the power of the High Court, as an ultimate court of appeal, to revisit its judgments before they are entered is broader than that of an intermediate appellate court, because of the potential availability of an appeal from an intermediate appellate court (by special leave) to the High Court. In R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119 at 132, Lord Browne-Wilkinson appears to have regarded the fact that the House of Lords is the ultimate appellate court in Britain as significant in deciding whether it should reopen an earlier order. His Lordship said:
the respondents to the petition do not dispute that your Lordships have jurisdiction in appropriate cases to rescind or vary an earlier order of this House. In my judgment, that concession was rightly made both in principle and on authority.
In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered. In Broome v. Cassell & Co. Ltd. (No. 2) [1972] A.C. 1136 your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point.
However, it should be made clear that the House will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.
32 As a general rule, these manifestations of the principle of finality apply no differently in the case of a judgment that results from the hearing of an appeal than they do in the case of a judgment at first instance. In relation to the exercise of the judicial power of the Commonwealth in relation to appeals, this has been made explicit. In DJL v The Central Authority [2000] HCA 17 (2000) 201 CLR 226, the High Court held that the Full Court of the Family Court of Australia had no power to reopen an appeal once the judgment on the appeal had been entered, when reopening was sought on the ground that the court had applied the wrong legislation in determining the appeal. See [24]-[49] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ and [182]-[189] per Callinan J. In Pantzer v Wenkart [2007] FCAFC 27, a Full Court of this Court refused to reopen an appeal after final orders had been entered. At [5], Black CJ specifically followed DJL, stating that differences between the legislation conferring appellate jurisdiction on the Family Court and legislation conferring appellate jurisdiction on this Court were irrelevant to the existence of a power to reopen. DJL should therefore be regarded as authority binding this Court, in relation to the exercise of its appellate jurisdiction, and establishing the proposition that a Full Court cannot reopen an appeal that has been the subject of final orders that have been entered.