Gregory John King v Cake It Away Pty Limited

14 Before setting out our reasons for refusing the appellant's Notice of Motion to re-open the appeal proceedings, we propose to refer briefly to the principles applicable to re-opening a case. Those principles were recently reviewed in the decision of the Full Bench of the Court in Vasile Nan v Andreas Van den Berg and ors [2004] NSWIRComm 361 and particularly at [29] and following. In concurring with those principles as expressed, we refer particularly to the following paragraphs as relevant to our considerations here: [29] The law and applicable principles related to a court's power to re-open a case becomes a matter at issue before us. There is no inherent power in a court (including the Supreme Court of NSW) to deal with a further matter or appeal which has already been dismissed by formal order and where the order was entered before an application to vary it was made. In Bailey v Marinoff (1971) 125 CLR 529, Barwick CJ stated at (530): Once an order disposing of a proceeding has been perfected by being drawn up as the record of the Court, that proceeding, apart from any specific and relevant statutory provision, is at an end in that the Court and is in its substance, in my opinion, beyond recall by that Court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a Court to have a power to reinstate a proceeding of which it has finally disposed. [30] The principles referred to in Bailey were later considered by the High Court in FAI General Insurance Co Ltd v Southern Cross Exploration NL (1987-1988) 165 CLR 268. In that case the court was dealing with rules of the court and seemed to confine the decision in Bailey to the inherent jurisdiction of the court, and in some of the judgments restricted it to judgments of the Court of Appeal. However, Gaudron J noted that the statements of Barwick CJ and other members of the Court were in broad and general terms of principle. In the absence of a specific statutory provision or rule permitting the re-opening of the case, the court is usually regarded as functus officio and the matter is incapable of being revived. [31] In Wentworth v Wentworth [1999] NSWSC 638, Santow J dealt with the issue of re-opening a judgment that had been entered and considered both the principle of re-opening and what constituted a judgment which had been entered. In relation to these matters his Honour stated: 3. The jurisdiction to re-open is, as I explain, an exceptional jurisdiction. It is to be exercised only where warranted. Otherwise, public policy in favour of finality of litigation will be jeopardised. The question here is whether its invocation is indeed justified. It is clearly important that Courts in the interests of justice do not fail to recognise when those exceptional circumstances are made out. No less important is that unjustified applications are discouraged. ... 15. The discretion to re-open or vary judgment is thus significantly qualified. As is so often said, the power should 'be exercised with great caution'; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684 ... [32] Santow J went on to consider cases where the power to re-open had been exercised and where it had been refused as giving a guide to the circumstances in which re-opening will be available. His Honour noted that in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 30, the discretion was not exercised because the parties had been sufficiently heard on the impugned issue. The judgment in Autodesk Inc applies the principle of functus officio yet admits of a discretion to re-open in very limited circumstances. In Fairfax Publications Pty Ltd v Abernathy [1999] NSWSC 820, Adams J stated: It is the essence of the notion of 'functus officio' that the relevant function or office has been discharged or performed 'the purpose for which its creation has been fulfilled' (Leung v Minister for Immigration (1997) 79 FCR 400 per Finkelstein J at 410; Jayasinghe v Minister for Immigration and Ethnic Affairs and anor, unreported, Federal Court of Australia, Goldberg J, 25 June 1997; Winters v Cross (1976) 1 NSWLR 616 per Samuels AJ at 624). [33] In Metwally v University of Wollongong (1985) 60 ALR 68, application was made to the High Court to vary an earlier order made by the Court and hear further argument. In this application the Court stated (at 70-71): It may be assumed, without deciding, that the Court had power to vacate its order of 22 November 1994, notwithstanding that it has been perfected. If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 42 IELR 289; 150 CLR 29 at 38. The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order had been made against a party who was not heard. Mr Metwally was represented - and competently represented - in the argument before this Court ... . It is elementary that a party is bound by the conduct of his case. 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. [34] The power to re-open, if it exists in a case where judgment is perfected, must be exercised with great caution. The jurisdiction should only be exercised when exceptional circumstances are made out. The authorities refer to a circumstance such as fraud, mistake or a party to the litigation not being heard as a circumstance which may be considered so exceptional as to attract a decision to re-open a perfected order of the court. A policy of finality of litigation underpins our system of law.

(2003) 130 IR 378

(2001) 114 IR 241

(1971) 125 CLR 529

(1982) 149 CLR 672

(1993) 176 CLR 30

(1997) 79 FCR 400

(1976) 1 NSWLR 616

(1985) 60 ALR 68

[2004] NSWIRComm 361

[1999] NSWSC 820