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[2001] SASC 287
respondent. Application by Glenmont to rescind the Full Court's sealed orders dismissed; adjournment and applications for differently constituted Full Court refused; re-opening application refused (paras...
Glenmont sought to have the Full Court rescind the sealed orders by which the Full Court had set aside the trial Judge's finding that the Agricultural Society was liable for the loss of a dinosaur replica by fire. The Full Court assumed, without deciding, that it might have power under the Rules to rescind sealed orders, but held that even if such power exists it should be exercised only sparingly. The Court refused to rescind the orders because Glenmont's grounds amounted to re-arguing factual findings already considered and decided by the Full Court; no procedural unfairness or error of principle was alleged; and Glenmont had an available, ordinary appellate route (application for special leave to the High Court). The re-opening application was dismissed and adjunct applications for a differently constituted Full Court and adjournments were refused (paras 17-26).
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This Full Court judgment records an application by Glenmont Investments Pty Ltd to rescind (recall/re-open) sealed orders previously made by the Full Court on 28 March 2001. Those earlier orders had disposed of an appeal: the trial Judge had awarded Glenmont damages for loss caused by the destruction by fire of a large replica dinosaur located on land owned by the Royal Agricultural and Horticultural Society of South Australia Inc (the Society), and had found the Society negligent (trial findings summarised at [3]). On appeal the Full Court set aside the finding of liability against the Society, upheld liability of other defendants involved in causing the fire, and reduced the award of damages ([4]).
Glenmont wished the Full Court to resume the hearing and reconsider or rescind its previous orders so that Glenmont could contest the Full Court's findings of fact and its interference with the trial Judge’s conclusions ([5]-[6]). Glenmont had also applied to the Chief Justice for an order that a differently constituted Full Court hear the re-opening application; the Chief Justice refused that application (Glenmont (No 3)) and arranged that the existing Full Court would hear the re-opening application ([8]). Glenmont made further interlocutory moves, seeking adjournments and leave to appeal the Chief Justice’s decisions: those interlocutory applications were refused (Glenmont (No 4) and Glenmont (No 5)) ([9]-[11]).
The Full Court proceeded to hear (and decline to adjourn) the re-opening application; Glenmont ultimately did not present oral submissions on the merits at the Full Court hearing ([12]-[13]). The Full Court dismissed the re-opening application, giving brief reasons, and emphasising that even if the court rules conferred power to rescind sealed orders, the power should be sparingly exercised and not used to re-argue matters already decided ([14]-[26]).
Two distinct issues appear in the Court's reasoning: (1) the legal question whether r 84.12 of the Supreme Court Rules (and potentially s 72 of the Supreme Court Act) confers power on the Full Court to rescind sealed orders; and (2) if such a power exists, whether it should be exercised in the present case.
On the first point the Court expressly assumed, for the purposes of argument, that r 84.12 might give the Full Court the power to rescind sealed orders, noting that the point is legally weighty and deserved fuller argument, possibly before a larger bench of five judges ([17]). The Court did not decide the legal question, and recorded authorities suggesting that, at common law, there is no power to recall a sealed order to permit rehearing of merits ([17] citing Bailey v Marinoff and DJL v Central Authority).
On the second point the Full Court clearly stated the legal and policy constraints on exercising any such discretionary rescission power. The Court emphasised the public interest in the orderly conduct of litigation, finality of decisions, and justice to parties who have relied on and benefited from sealed orders ([19]). It stated that ordinarily rescission would not be exercised to enable re-argument, to admit arguments not previously put, or to permit arguments that could be put on appeal or review ([20]). The Court viewed Glenmont’s proposed grounds as nothing more than a reargument of matters already argued and decided; no suggestion was made of fundamental misunderstanding, procedural unfairness or error of principle by the Full Court ([21]-[22]). The availability of an appeal (Glenmont had applied for special leave to the High Court) further militated against rescission, because appellate processes provide an ordinary remedy for alleged error ([24]). Taken together, these reasons justified refusal of Glenmont's application ([18]-[26]).
Before this decision (as the Full Court itself acknowledged), there was not an authoritative single statement in the South Australian Full Court on the proper scope of any power under r 84.12 to rescind sealed orders. The Full Court referred to prior local authority (Copping v ANZ McCaughan Ltd) which "so held" but had not had to decide the point definitively, and to High Court authority indicating that, at common law, there is no recall power to permit rehearing of merits (Bailey v Marinoff; DJL v Central Authority) ([17]).
This judgment does two things. First, it leaves open the legal question whether the Rules (or s 72 of the Supreme Court Act) confer such a power, explicitly declining to decide it and signalling the need for fuller argument and potentially a bench of five judges to determine the statutory/rule power definitively ([17]). Second, and practically more important, it articulates and applies a clear set of discretionary limits on any such power: where an applicant seeks to reargue matters already decided, or to raise arguments that are more properly the subject of an appeal, the Full Court will not rescind its sealed orders except in exceptional circumstances. Thus, even without resolving the existence of the power, the Court indicates that rescission will be an exceptional remedy constrained by finality and by the availability of ordinary appellate avenues ([18]-[21], [24]).
In short, the judgment tightens the practical availability of rescission as a route to re-open appellate decisions, while leaving the formal legal question for fuller argument.
"Our view is that even if the Court has power to rescind the sealed order, we should not do so." ([18])
"Such a power is one to be exercised with great care, bearing in mind the public interest in the orderly conduct of litigation; in the finality of decisions disposing of matters before the Court, and in the interests of justice to the parties with the benefit of such an order." ([19])
"In our opinion the power ordinarily would not be exercised to enable arguments already put to the Court to be put again or to be put differently, or to enable arguments not previously put to be put." ([20])
"Having considered the arguments ... it appears that each of those arguments involves no more than a reconsideration of matters already argued on appeal, and decided by the Full Court." ([21])
"The availability of a right of appeal, admittedly conditional on a grant of special leave, is another reason why the Court should not rescind its order in other than an exceptional case." ([24])
This decision applies when a party seeks to have a Full Court rescind sealed orders and re-open an appeal for reasons that amount to re-arguing factual findings or established conclusions of the Full Court. Key factual patterns include:
In such patterns, the Full Court will ordinarily refuse rescission and decline to adjourn or transfer the application to another bench.
This judgment does not itself report any subsequent judicial treatment. The Full Court expressly reserved the larger legal question (whether r 84.12 and s 72 permit rescission) for fuller argument and possibly a larger bench ([17]). The present judgment therefore provides a persuasive, procedural precedent within South Australia about the exercise of rescission powers, focusing on narrow, practical limits, but it leaves open the formal statutory or rule-based authority question. From this judgment alone, one cannot reliably state how other courts later treated the specific legal point; the text contains no post-decision citations or follow-up rulings.
The Full Court identified several legal questions left unresolved by this decision:
Existence and scope of power under r 84.12: The Court assumed the rule might confer power to rescind sealed orders but did not decide the point. That question, the Court said, requires fuller argument and perhaps determination by a five-judge bench ([17]). The threshold legal point therefore remains open.
Relationship between r 84.12 and s 72 of the Supreme Court Act: The Court flagged whether s 72 supports the suggested rule power as an issue that may arise and which needs consideration ([17]).
The precise contours of 'exceptional cases': While the Court articulates clear examples where rescission is inappropriate (re-argument, raising matters that can be appealed), it did not provide an exhaustive taxonomy of exceptional circumstances where rescission would be proper. Future cases will need to develop what concrete factors (e.g. fraud, fraud on the court, clerical error, fundamental jurisdictional error) justify rescission.
Interaction with appellate remedies: The judgment stresses the availability of appeal (special leave to High Court) as a reason to refuse rescission ([24]). It leaves open how the balance is to be struck where appellate routes are theoretically available but practically unlikely or where delay would cause prejudice.
Whether a differently constituted Full Court should ever be required as a matter of right to entertain a re-opening application: the Court held that the re-opening application should be made first to the existing Full Court, but did not explore whether there are cases where a change in bench composition is mandatory.
Those unresolved issues are potential topics for fuller argument in future litigation; the Full Court signalled that a definitive resolution may require larger bench consideration and detailed argument ([17]).
Judgment No. [2001] SASC 287
GLENMONT INVESTMENTS PTY LTD v O'LOUGHLIN & ORS (NO 6)
DOYLE CJ, NYLAND & MARTIN JJ The application before the Court is for an order rescinding orders made by the Court on 28 March 2001. Those orders disposed of an appeal to the Full Court. The application before the Court is made by Glenmont Investments Pty Ltd ("Glenmont"), a respondent to the appeal.
The appeal was against a judgment in favour of Glenmont for damages for loss suffered by Glenmont as a result of the destruction of a large replica dinosaur. The dinosaur was destroyed by fire. At the time the dinosaur was on land belonging to the appellant, The Royal Agricultural and Horticultural Society of South Australia Inc ("the Society").
The trial Judge found that the Society was liable in negligence. Without going into details, he found that the Society failed to call the fire brigade as quickly as it should once it became aware of the fire, and failed, by its employees, to use available means to fight the fire. The Judge found others involved in the fire to be liable in negligence. They were Mr Foote, the welder who started the fire, Messrs Parker and Edwards, his employers, and Mr O'Loughlin, who had contracted with Messrs Parker and Edwards for them to remove a scaffolding around the dinosaur. The fire started when Mr Foote was cutting the scaffolding.
On appeal we set aside the finding that the Society was liable, upheld the finding that the other defendants were liable, and reduced the award of damages.
If the application now before the Court is successful, Glenmont invites the Court to resume the hearing of the appeal, to deal with a submission by Glenmont to the effect that the Court erred in making certain findings of fact, or interfering with findings made by the trial Judge. We will refer to the application as the re-opening application.
We assume that an argument would then be put that the Full Court should revisit the issue of whether the Society is liable to Glenmont, and that Glenmont will submit that the findings should stand.
The background to this is an application by Glenmont to the High Court for special leave to appeal against the decision of the Full Court. The application is to be heard within a day or two. We understand that Glenmont does not challenge our decision on damages, but only our decision that the Society was not liable to Glenmont.
Glenmont applied by application dated 26 July for an order that the re-opening application be heard by a differently constituted Full Court. The Chief Justice dismissed that application: see Glenmont Investments Pty Ltd v O'Loughlin & Ors (No 3) [2001] SASC 267. Mr Anderson QC, counsel for Glenmont, then and there made an oral application that the Full Court as presently constituted hear the re-opening application. The Chief Justice agreed to arrange for the Court to sit as soon as possible, and on the same day as the decision just referred to, 1 August 2001, a hearing was fixed for Monday 13 August at 2.15 pm.
A few days later Glenmont applied for an order adjourning this hearing, so that it could appeal against the Chief Justice's order. The Chief Justice, again sitting as a single Judge, refused that application on 8 August 2001: see Glenmont Investments Pty Ltd v O'Loughlin & Ors (No 4) [2001] SASC 275.
On 13 August 2001 a differently constituted Full Court refused leave to appeal against the Chief Justice's order refusing to have the re-opening application dealt with by a differently constituted Full Court: Glenmont Investments Pty Ltd v O'Loughlin & Ors (No 5) [2001] SASC 280. Glenmont complains that it was not properly heard on that application, but that is a complaint that we can do no more than record.
The hearing on Monday was adjourned to today, because of applications being made to a Justice of the High Court on Tuesday 14 August. It is not necessary to say any more about the applications.
Glenmont renewed its adjournment application to us. We refused to adjourn the hearing, for the reasons given by the Chief Justice in Glenmont (No 4). In particular, we do not accept that the hearing should not proceed because Glenmont claims a right to go to a differently constituted Full Court. Our view is that the re-opening application must be made to this Court, at least in the first instance. Being of that view, it would not be appropriate to desist from hearing the re-opening application.
Mr Holland, for Glenmont on 15 August, then elected not to put any submissions in support of the re-opening application. We assume that this was because Glenmont claims the right to put any such submissions to a differently constituted Full Court. We heard submissions in opposition to the re-opening application from Mr Curtain QC, counsel for the Society.
Although no submissions in support of the re-opening application were put to us, an affidavit filed by the solicitor for Glenmont sets out quite clearly the matters to be argued, were the Court prepared to rescind the orders disposing of the appeal.
Although we have not heard submissions from Glenmont in support of the view that we should rescind our order, we considered it appropriate to dismiss the application. We think it appropriate to indicate briefly why we take that view, but we emphasise that we have not had submissions to the contrary from Glenmont.
For present purposes we will assume that r 84.12 of the Supreme Court Rules gives the Full Court power to rescind the sealed orders. In Copping v ANZ McCaughan Ltd [1997] SASC 5995; (1997) 67 SASR 525 the Full Court so held, although it did not have to decide the point. It would not be appropriate to reconsider the point without the benefit of submissions. A court of five judges may be required. It is an important issue, bearing in mind that authority supports the view that at common law there is no power to recall a sealed order to permit an argument of the kind foreshadowed here, that is, an argument that involves reconsidering the merits of issues already argued and decided: see Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530; DJL v Central Authority [2000] HCA 17; (2000) 170 ALR 659 at [33]- [38]. An issue may arise as to whether s 72 of the Supreme Court Act supports r 84.12, if it confers the suggested power.
Our view is that even if the Court has power to rescind the sealed order, we should not do so.
Such a power is one to be exercised with great care, bearing in mind the public interest in the orderly conduct of litigation; in the finality of decisions disposing of matters before the Court, and in the interests of justice to the parties with the benefit of such an order.
In our opinion the power ordinarily would not be exercised to enable arguments already put to the Court to be put again or to be put differently, or to enable arguments not previously put to be put. Nor would the power be exercised ordinarily to enable arguments to be put which can be put in the course of an available process of review or appeal; nor would the power be exercised ordinarily to enable matters already argued to be re-argued: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; McAdam v Robertson [1999] SASC 169; (1999) 73 SASR 360.
Having considered the arguments outlined in the affidavit filed by Glenmont's solicitor, it appears that each of those arguments involves no more than a reconsideration of matters already argued on appeal, and decided by the Full Court. Of course, there is the further submission that the Full Court has erred, but that can hardly be a reason to rescind sealed orders. Our view is that the foreshadowed argument is a straight forward case of an attempt to persuade the Full Court that in disposing of the appeal, it went wrong on the facts.
There is no suggestion that the Full Court has been misled as to the issues to be decided, as to the material that it can properly consider, or that it has fundamentally misunderstood the issue before it. No error of principle is suggested. It is not suggested that the Full Court has proceeded on an erroneous premise about the issues to be decided, or has overlooked relevant rules of law. Glenmont does not submit that it was not heard on the issues decided. We do not imply that establishing any one of these matters would necessarily lead to a decision that the sealed order should be rescinded. We are speaking fairly generally, and each case must, of course, be considered on its facts and in all the circumstances.
Were the Full Court to rescind the sealed order, that would amount to a decision that whenever an arguable error is shown, it is appropriate for the Full Court to do so. We do not accept that this can be right.
Moreover, Glenmont has sought special leave to appeal to the High Court from our decision disposing of the appeal. Issues of fact rarely attract a grant of special leave, but they might do so, particularly if the Court is minded to grant special leave on some issue of principle. The availability of a right of appeal, admittedly conditional on a grant of special leave, is another reason why the Court should not rescind its order in other than an exceptional case.
We have prepared these brief reasons to indicate, should it become relevant before the High Court, why we dismissed the re-opening application.
At the outset of this latest hearing we invited Mr Holland to renew to the Full Court the application, originally made to the Chief Justice, that the Full Court as presently constituted should desist from dealing with the re-opening application. He declined to do so. When we refused the adjournment application, he said that he had no other application to make to the Court. We indicate that, in our view, that is the application that logically would come first, now that the Full Court is sitting. Our view is, as we have indicated, that the Full Court as presently constituted should deal with any re-opening application.
GLENMONT INVESTMENTS PTY LTD
O'LOUGHLIN & ORS
(1997) 67 SASR 525
(1971) 125 CLR 529
(2000) 170 ALR 659
(1982) 150 CLR 29
(1992) 176 CLR 256
(1993) 176 CLR 300
(1999) 73 SASR 360
Application by Glenmont to rescind the Full Court's sealed orders dismissed; adjournment and applications for differently constituted Full Court refused; re-opening application refused (paras 14-16, 26).