Harrison v Schipp

The bill of review procedure in England 141 The formal act in the Court of Chancery of which entry of an order is now the equivalent was enrolling a decree. 142 According to Mitford, A Treatise on the Pleadings in Suits in the Court of Chancery by English Bill, 5th ed (1847), pp 101-2, the object of a bill of review was to procure an examination and reversal of a decree made upon a former bill and signed and enrolled; it could be brought on error of law appearing in the body of the decree itself "or upon discovery of new matter", and if it was sought to reverse a decree signed and enrolled upon discovery of new matter - " …the leave of the court must be first obtained; and this will not be granted but upon allegation upon oath that the new matter could not be produced, or used by the party claiming the benefit of it at the time when the decree was made. If the court is satisfied that the new matter is relevant and material, and such as might probably have occasioned a different determination it will permit a bill of review to be filed."

143 In Daniell, The Practice of the High Court of Chancery, 5th ed (1871), pp 1422-3 it is said that a bill of review could be brought to have a decree which had been enrolled varied or reversed; it could be brought for error of law appearing on the face of the decree or "upon some new matter which has been discovered after the decree, and could not possibly have been used when the decree was made", and - "If the bill is filed on the ground of new matter, discovered since the decree, the new matter must be relevant and material, and such as might probably have occasioned a different determination; and no bill of review … grounded upon new matter discovered after the decree, can be brought without the special leave of the Court, first obtained for that purpose".

See also Smith, Practice of the Court of Chancery , 7th ed (1862), pp 809, 811. 144 A bill of review could not be brought if twenty years had elapsed from the time of pronouncing the decree, unless the plaintiff was under a disability (Mitford, pp 105-6; Daniell, pp 1424-5; Smith, p 811). From the cases cited, the period seems to have been arrived at by analogy with the time within which writs of error could be brought in the common law courts. 145 According to Daniell, p 1423, the application for leave to file the bill of review was usually made by petition, but could be made by motion. Daniell continues - "Upon the application, the Court must be satisfied that the new matter has come to the knowledge of the applicant and his agents for the first time since the period at which he could have made use of it in the suit, and that it could not, by reasonable diligence, have been discovered sooner; and that it is of such a character that, if brought forward in the suit, it would probably have altered the judgment." (pp 1423-4) 146 This is consistent with the passage from Mitford earlier set out, and see also Smith pp 814-5. That new matter was available, that it was fresh evidence, and the probability of a different result arose on the application for leave. The earlier passage in Daniell, p 1422-3 should not be read as saying that on the bill of review itself the court went no further than finding that the new matter "might probably have occasioned a different determination": it should be read as directed to the application for leave to file the bill of review. 147 What happened, then, if leave was given and the bill of review was filed? 148 Daniell says, p 1425, in a passage reflecting Mitford pp 106-7 on which it is based - "In a bill of this nature, it is necessary to state the former bill and the proceedings thereon, the decree, and the point in which the party exhibiting the bill of review conceives himself aggrieved by it, and the ground of law, or new matter discovered, upon which he seeks to impeach it. If the decree is impeached on the later ground, the bill must state the leave obtained to file it, and the fact of the discovery. The bill may pray, simply, that the decree may be reviewed and reversed in the point complained of, if it has not been carried into execution. If it has been carried into execution, the bill may also pray the further decree of the Court, to put the party complaining of the former decree into the situation in which he would have been, if that decree had not been executed." To the same effect is Smith , p 812. 149 D M Gordon QC in "Fraud or New Evidence as Grounds for Actions to Set Aside Judgments" (1961) 77 LQR 358 (Pt I), 533 (Pt II) considers actions for review extending also to review for fraud and review of decisions of common law courts. He says (at 379) - "Light on how an action of review should be conducted, after the way is open to proceed to a hearing comes mostly from the old Chancery cases. The course that proceedings should take seems to have been by no means constant; the various steps possible in the conduct of a review were very much in the discretion of the Chancellor, according to the controversies that the new evidence on review would raise. The Chancellor would dispose of all matters on one hearing or divide these between several hearings according to what was most convenient and expedient in the particular case. For that reason, not much can be discovered in the way of rules, and only a few elastic ideas can be discovered in the precedents."

150 The learned author says (at 380-1) that in a review because of new evidence the new evidence could hardly be considered apart from the original evidence, and that if the court reached the stage of rehearing the original case it would make a final disposition of the original action. In later considering in more detail what he called the main hearing, he says (at 557) that in a review on discovery of new evidence the course of the proceedings "should seemingly be assimilated to that where perjury is set up", the course of the proceedings in general called for in such a case being (at 556) "a hearing in which both the old and the new evidence is weighed together". He continues (at 556-7) - "The course of such a hearing seems to have varied in different cases. The main problem is whether the old evidence should be reheard or reweighed by reading the record of it. Before the Judicature Act matters were simplified because the first trial and the second were usually held before the same judge without a jury. So when he had heard the new evidence, there was often no need for him to rehear the old orally; he would recall the evidence or refresh his memory from the record and so weigh the old against the new. However, this course might not be followed; sometimes all the evidence was reheard orally. At other times the court had no record of the first trial to reread. The Chancellors on occasion did not try disputed facts themselves, but sent an issue to a common law court to be tried by jury. The common law courts kept no records of evidence. Both the first and the second trials might be sent to a common law court and then it seems obvious that the second jury must have heard all the first evidence repeated orally. The Chancellor might however, in sending an issue to a common law jury, retain certain matters for his own additional findings after getting the verdict. When the Chancellor himself heard the new evidence and collated this with his recollection or record of the old evidence, probably no serious problem arose as to onus of proof. It is an obscure point where the onus rested when the court heard the new evidence and reheard the old evidence orally at one hearing." 151 The citations for a hearing in which both the old and the new evidence is weighed together are Hungate v Gascoyne (1846) 2 Ph 25; 41 ER 850; Cotter v Barrymore (1733) 4 Bro P C 203; 2 ER 138; Partridge v Usborne (1828) 5 Russ 195; 38 ER 1000; Barnesly v Powell (1748) 1 Ves Sen 199, 120, 284; 27 ER 930, 1034; Belt's Supp 74, 143; 28 ER 460, 482; White v Ivory (1910) reprinted from The Times [1922] 1 WWR at 1222; and Friesen v Braun [1926] 2 WWR 257. 152 These cases are not particularly material to review on the ground of fresh evidence. Hungate v Gascoyne was an application for leave to file a supplemental bill of review (at to which see later in these reasons): the Lord Chancellor said (at 26; 851) that the question was "whether, looking at the case made on the other side and the whole mass of evidence adduced on the former hearing, what was now brought forward was likely to have altered the judgment which the Court then came to". In Cotter v Barrymore fraud was alleged. Partridge v Usborne was also an application for leave to file a supplemental bill of review, and the Lord Chancellor did not say how the evidence was to be weighed. Barnesley v Powell was a fraud case, and it was said (at 120; 930) that there could be relief against a decree "if obtained by fraud and imposition, which infects judgments at law, and decrees of all courts, and annuls the whole in consideration of this court". White v Ivory and Friesen v Braun were both fraud cases. 153 Nonetheless Hungate v Gascoyne suggests what is otherwise to be expected, that "review" on the ground of new matter discovered involves considering the evidence before the court when the original decree was made plus the new matter, and deciding whether there should be a different result. If on the application for leave that was done to decide whether the new matter is likely to have brought a different result, on hearing the bill of review the same would be done to decide whether the new matter does bring a different result, Other cases indicate that this is what happened, for example Thomas v Rawlings (No 3) (1864) 34 Beav 50 at 53-4; 55 ER 551 at 552. 154 A bill of review was not the only way a dissatisfied party could challenge the result in a suit. There could also be an appeal or rehearing in the Court of Chancery or an appeal to the House of Lords, see Daniell, p 1329; Smith pp 700, 712, 733. Until 1851 appeals or rehearings in the Court of Chancery were either before the same judge or before the Lord Chancellor, but there could not be such an appeal or a rehearing after the decree had been enrolled (Daniell, p 1344; Smith pp 701, 733). By 14 & 15 Vic c 83 a Court of Appeal in Chancery was created and invested with the Lord Chancellor's jurisdiction, but there was no provision for taking fresh evidence. An appeal to the House of Lords was brought by petition of appeal, including from the Court of Appeal in Chancery (Daniell, p 1360-1; Smith , p 733), but it could be brought only after the decree had been enrolled and the House of Lords would "not receive evidence which was not laid before the Court below" (Daniell, p 1368; see also Smith p 738). So neither of these procedures enabled the dissatisfied party to challenge the result after the decree had been enrolled on the ground of fresh evidence. 155 The bill of review procedure should be distinguished from the procedure of a bill in the nature of a bill of review. The latter bill was the procedure for impeaching a decree which had not been signed and enrolled (see Mitford 97, 108-12; Daniell, pp 1422, 1425-6; Smith, p 816). Smith describes it as a supplemental bill in the nature of a bill of review, and in Perry v Phelips (1810) 17 Ves Jun 173; 34 ER 67 Lord Eldon describes it in the same way (at 177-8; 68-9). 156 It should also be distinguished from the procedure of a bill by which a decree was impeached on the ground that it was procured by fraud. That procedure is dealt with separately in Mitford, and Daniell, and not at all by Smith. A case that a decree was procured by fraud will require new evidence, the evidence of the fraud, and so could be seen as akin to the bill of review procedure. Gordon treats such a case as an action for review, while carefully maintaining the distinction between review based on new evidence of matters other than fraud, on the one hand, and review for fraud although based on new evidence, on the other hand (see in particular at 361-2). 157 The distinction is well maintained. First, the bill by which a decree was impeached on the ground that it was procured by fraud was described as an original bill, not a bill of review (Mitford, pp 97, 112-3); Daniell pp 1428-9). Secondly, the bill could be filed without the leave of the court (Mitford p 113; Daniell, p 1428). Thirdly, the new evidence did not have to be evidence that could not have been discovered earlier by the exercise of reasonable diligence (see now Toubia v Schwenke (2002) 54 NSWLR 46 and its discussion of the cases and Gordon's article). Fourthly, the issue was the fraud by which the decree was procured, and the hearing would not be one in which both the old and the new evidence was weighed together. Fifthly, if the fraud was proved the decree would be vacated and the parties restored to their former positions whatever their rights may be (Mitford, p 113; Daniell, p 1429; see Birne v Hartpole (1717) 5 Bro PC 200; 2 ER 624, 626; Barnesly v Powell): that is, the bill did not procure a different result in the proceedings resolving the rights of the parties, but procured a nil result leaving the rights of the parties unresolved. In truth, the bill by which a decree was impeached on the ground that it was procured by fraud was (and is) an exercise of the equitable jurisdiction to relieve against fraud. It was not a "review" on the ground of new matter discovered. 158 In 1873 the Judicature Act created the High Court and the Court of Appeal. The High Court had original jurisdiction, and the Court of Appeal had appellate jurisdiction "with such original jurisdiction as herein-after mentioned as may be incidental to the determination of any appeal" (s 4). Section 16(1) transferred to and vested in the High Court the jurisdiction of the Court of Chancery, but s 18(1) transferred to and vested in the Court of Appeal "all jurisdiction and powers of the Lord Chancellor and of the Court of Appeal in Chancery, in the exercise of his and its appellate jurisdiction". By s 22, the jurisdiction transferred to and vested in the High Court and the Court of Appeal "shall cease to be exercised, except by the said High Court of Justice and the said Court of Appeal respectively, as provided by this Act". 159 In the cases considered in the judgments of Handley JA and Ipp AJA the English courts thereafter addressed or touched upon, sometimes rather obscurely, whether the bill of review procedure survived to enable an action to be brought on the ground of fresh evidence with a view to a different result in the original action. The cases sometimes suffer from failure clearly to distinguish between a bill of review and a bill in the nature of a bill of review, and between those bills and an original bill impeaching a decree on the ground that it was procured by fraud. 160 One question was, or at least could have been, whether what was transferred to and vested in the Court of Appeal included a bill of review procedure. If that were so, separate proceedings to set aside an order which had been entered could not be brought in the High Court. Another and consequential question was, or at least could have been, whether if transferred to and vested in the Court of Appeal the bill of review procedure could in some manner be taken up in the Court of Appeal. The overarching question was, or at least should have been, whether the new court structure and arrangements made the bill of review procedure otiose and impliedly did away with it, regardless of what was transferred to and vested in the respective courts. 161 In Flower v Lloyd (1877) 6 Ch D 297 Jessel MR's obiter observations accepted the continued availability in the High Court of the bill in the nature of a bill of review procedure, but without reasoning. That procedure was much more obviously an exercise of original jurisdiction passing to the High Court, since the court had not finally disposed of the proceedings. Its current manifestation is an application to reopen prior to entry of judgment, see for example Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672; Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300. 162 In Falcke v The Scottish Imperial Insurance Company (1887) 57 LT 39 Kay J firmly accepted the continuance of the bill of review procedure, saying that nothing in the Judicature Act affected the relevant law and practice of the court. His Lordship did not further explain his reasons, and apparently disregarded in re St Nazaire Company (1879) 12 Ch D 88. Kekewich J gave relief in in re Scott & Alvarez's Contract (1895) 1 Ch 596, but on concession that Falcke v The Scottish Imperial Insurance Company did not permit argument to the contrary. In Boswell v Coaks (No 2) (1894) 6 R 167 the Lord Chancellor made observations which could be read as accepting the continuance of the bill of review procedure, but it was a fraud case and, for the reasons given by Handley JA and Ipp AJA, the observations should not be so read. So far as these cases supported the continued availability of the bill of review procedure, albeit in a different manifestation, they were far from satisfactory. 163 In in re St Nazaire Company the court considered that a procedure apparently regarded as equivalent to an application for a rehearing in the Court of Chancery had not survived the Judicature Act. Handley JA and Ipp AJA have described the course of that case, and have set out the relevant passages. The case was complicated by the fact that the hearing was to be after dismissal of an appeal, but the essential reasoning was that the rehearing was appellate in nature and under the Judicature Act the power of rehearing lay in the Court of Appeal alone. 164 On one view the court answered only the first of the questions earlier suggested. But the reasoning of Jessel MR went further, and I repeat (from 96-7) - "Then it was said that under the old practice the Court of Chancery, that is, the judges of the Court of Chancery, the Lord Chancellor, the Master of the Rolls, and the Vice-Chancellor, could rehear not only their own decrees, but the decrees of their predecessors, that is, those whom they succeeded. No doubt it was so, but does that jurisdiction continue? If it does, the most extraordinary results will follow. The power to rehear was confined by General Orders. The time allowed had been 20 years but at last it came down to 5 years, and the power to appeal given by the new rules is only for 1 year; therefore, if such a power were considered to remain vested in the Judges of the High Court it would follow that after the lapse of 1 year you could not appeal at all, but you might at any time within 5 years present your petition of rehearing to the Judge himself, and then, if he refused it on the ground that he thought he was right before, which would be the most probable result, you could then appeal to the Appeal Court, and thereby get 5 or 6 years for appealing instead of 1. That would be so remarkable a result that hardly anyone could believe that such was the true construction of the Act of Parliament or the rules." 165 This went a long way towards answering the overarching question. The new appellate right, limited to a year from the original decision, was inconsistent with the old appellate right extending for five years, and the old appellate right was therefore no longer available The case is curious in that the orders in question must have been entered, since there had been an appeal. It had been argued (at 92) that the rehearing was analogous to "a supplemental bill in the nature of a bill of review" but the court did not clearly consider that procedure, let alone the different bill of review procedure. 166 Fry and Lopes LJJ in in re Suffield and Watts; ex parte Brown (1888) 20 QBD 693 at 697 and 698 saw in re St Nazaire Company as encompassing the bill of review procedure; they said that it showed that when an order had been "drawn up and perfected" the first instance court had no jurisdiction to reconsider the matter, or to vary or discharge the order. This position was endorsed in Preston Banking Company v William Allsup & Sons [1895] 1 Ch 141, Ainsworth v Wilding [1896] 1 Ch 673, and in re Harrison's Share Under a Settlement (1955) Ch 260. 167 In Charles Bright and Co Ltd v Sellar [1904] 1 KB 6 Cozens-Hardy LJ accepted the authority of in re St Nazaire Company, but also said that an action could be brought on the ground of fresh evidence. The relevant passages are set out in the judgments of Handley JA and Ipp AJA. His Lordship appears to have regarded in re St Nazaire Company as a case of rehearing without any question of fresh evidence, and to have distinguished it for that reason. It was not - it was a fresh evidence case. His Lordship also regarded Boswell v Coaks (No 2) as supporting action on the ground of fresh evidence. It did not. Like their Honours, I respectfully do not think Charles Bright and Co Ltd v Sellar is an authority of weight. 168 A more definitive decision in England came in in re Barrell Enterprises (1973) 1 WLR 19. The Court of Appeal held that, apart from where the judgment had been obtained by fraud, an action would not lie to set aside a judgment on the ground of fresh evidence. The basis for the decision appears from their Lordships' approval (at 27) of Jessell MR's observation in in re St Nazaire Company at 97 that the old jurisdiction of Chancery judges to order a rehearing was vested by the Judicature Act not in the High Court, but in the Court of Appeal. Although not further explained by their Lordships, the point must have been that a rehearing on the ground of fresh evidence was appellate in nature and lay in the Court of Appeal alone. This answered the first question earlier suggested, but it is not clear whether it carried with it an answer to the second or overarching question. 169 Their Lordships also said (at 27) that even if technically the High Court was at first clothed with the jurisdiction, the cause of action "has long since lapsed because applications for rehearing on the ground of fresh evidence have for generations been made only to the Court of Appeal". This effectively answered the overarching question, although on the robust basis of lapse from disuse (but disuse was no deterrent in relation to discovery against a witness in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133). Their Lordships were plainly disposed to the view that the new court structure and arrangements had made the bill of review procedure otiose and impliedly done away with it, see at 24-5 - "We are reluctant to find carried forward into this century procedures which were devised for review or rehearing or new trial at a time when the Court of Appeal did not exist. We can accept without difficulty the notion that if a judgment has been obtained by fraud an action can be brought to set it aside. But when it comes to setting aside a judgment on the ground that fresh evidence has been obtained it appears to us highly desirable that the Court of Appeal alone should have jurisdiction. Then the rules as to time for appeal, with the discretion to allow an appeal out of time, will apply. So will the code for deciding when fresh evidence should be admitted, … ".

170 In Taylor v Lawrence [2002] 2 All ER 353 it was held that the Court of Appeal had a residual jurisdiction albeit carefully confined, to reopen an appeal after the judgment has been drawn up. In re Barrell Enterprises was considered. I do not think it was disapproved so far as it was held that the bill of review procedure had not survived into the twentieth century. Rather, the residual jurisdiction was found in the Court of Appeal's modern jurisdiction, as a qualification to the general principle of finality of litigation . The authority of the High Court precludes our taking that course, and we were not invited to take it.

The bill of review procedure in New South Wales 171 The Supreme Court of New South Wales was established by the Charter of Justice 1823. It was a Court of Equity with the power and authority that the Lord Chancellor had within England for the due exercise of its equitable jurisdiction. The bill of review procedure was originally available in the Court, and was recognised in the mid-nineteenth century (see s 31 of 16 Vic No 3 and Hosking v Terry (1862) 15 Moore 493; 15 ER 581). 172 In 1840 provision was made for appeal from the judge exercising the equitable jurisdiction of the Court to two other judges of the Court (4 Vic No 22, s 21). The appeal had to be brought within 14 days from pronouncement of the decree. According to Parker's Practice in Equity, 2nd ed, p 120, the appeal "was not in terms called a re-hearing, but the Full Court in McLaughlin v Little inclined to the opinion that it was a re-hearing". The case is available as M'Laughlin v Little in (1845) Reserved and Equity Judgments 19, and the inclination (at 21) was to a rehearing rather than appeal "in a strict sense". An express statement that an appeal is by way of rehearing may make it possible to imply power to receive further evidence (see ex parte Currie; re Dempsey (1968) 70 SR 1; Mickelberg v The Queen (1989) 167 CLR 259; Eastman v The Queen (2000) 203 CLR 1). But the nature of the appeal was not decided, and the further implication of power to receive further evidence was not attempted. 173 In 1880 the 1840 provisions were in substance repeated, the appeal being from the first instance judge to the full Court (44 Vic No 18, s 70). But in addition it was expressly provided that the appeal should be by way of re-hearing, and the full Court was expressly given a discretion to receive further evidence but, on appeals from a decree or order upon the merits at the trial, on special grounds only (ibid, s 71, 73). 174 Provisions to like effect were included in the Equity Act, 1901 (ss 81-2, 84). That position has remained, and is now found in s 101 (appeal) and s 75A (further evidence) of the Supreme Court Act 1970. The time for appeal is now 28 days. 175 The Supreme Court Act was in some respects the New South Welsh equivalent of the Judicature Act, although many of the features of the Judicature Act system had been taken up piecemeal at earlier times. It continued the Supreme Court of New South Wales as formerly established (s 22). It gave the Court all jurisdiction necessary for the administration of justice in New South Wales (s 23), and for more convenient despatch of business the Court was divided into the Court of Appeal and Divisions (s 38). But the Court's former equitable jurisdiction was not transferred to or vested in some part of the Court alone; rather, it was provided that the Court "shall administer concurrently all rules of law, including rules of equity". This has been described as a fusion of the courts which administered the two systems of law and equity: O'Rourke v Hoeven (1974) 1 NSWLR 622 at 626. 176 Thus there was not in New South Wales the equivalent of transfer to and vesting in a court of appeal of the appellate jurisdiction of the Lord Chancellor and the Court of Appeal in Chancery. The English cases are not directly in point, and observations in Australian cases upon the English cases, or with reference to courts within Australia with a history closer to that of the English courts, are not necessarily of assistance. 177 The plaintiffs relied on Cussen J's reference in Ronald v Harper [1913] VLR 311 at 318 to "the same considerations as former was the case on an application for leave to bring a bill of review", but the context was a setting aside for fraud. The observations of Higgins J in Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR (Pt 1) 642 at 670-1 and in the joint judgment of Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ in DJL v The Central Authority at 244-5, to which Ipp AJA refers, are not directed to the position of the Supreme Court of New South Wales. The latter observations could endorse the view that the bill of review procedure was appellate in nature, but what might follow from that is another matter. 178 Gamser v The Nominal Defendant involved proceedings in the Supreme Court of New South Wales. Aickin J in effect said (at 154) that the general principle in Bailey v Marinoff, which also involved proceedings in the Supreme court of New South Wales, applied in a "a situation of fresh evidence". This is against the appellant, but the survival of the bill of review procedure does not appear to have been in question; it is therefore far from determinative. 179 In Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 231 the impugned judgment was a judgment of the Federal Court, which has not had a pre-Judicature Act history. It was sought to set aside the judgment on the ground of fraud. The reasons of Spender, Gummow and Lee JJ noted (at 238) that there had been some discussion of whether a separate proceeding, outside that provided for in the appellate structure, could be brought to seek a fresh trial on the ground of fresh evidence not going to establish fraud but going to the issues at the earlier trial. Their Honours referred to the bill of review procedure, but contemplated the possibility that the equitable jurisdiction to set aside a judgment on the ground of fresh evidence, absent fraud - " … no longer exists, having been supplanted by the statutory appellate system, or … is otiose, the occasion for its exercise no longer arising given the remedying by the modern legislation of the previously perceived deficiencies in the old common law procedures for review by writ of error and the motion for new trial". (at 240) 180 This went beyond the bill of review procedure for challenging a decree in equity, and their Honours said that it was unnecessary to express a concluded view. Nonetheless it points to what I consider to be the proper approach to survival of the bill of review procedure in the Supreme Court of New South Wales. 181 As was said in in re St Nazaire Company and in re Barrell Enterprises, and probably accepted in DJL v The Central Authority, when under the bill of review procedure the court reheard the case weighing the fresh evidence together with the original evidence, the procedure was appellate in nature. This, it seems to me, is the only sensible view to take. The original trial judge had finished with the case, and the formal act of enrolment had brought to an end the court's disposition of the suit. If leave were given, on the hearing of the bill of review there would be just that, a review with the fresh evidence added to the original evidence. The original decree was not set aside and a new trial held. The original decree remained in place unless and until, as a result of the review, it was varied or reversed. 182 But the label of appellate or something else, for New South Wales, does not matter. Whatever label be put on the procedure, it was supplanted by the statutory appellate system brought about in 1880. 183 Prior to 1880 fresh evidence was not relied on in appeals. Under the pre-Judicature Act procedures so far as imported into New South Wales it could not be relied on, and apart from the inclination to an appeal by way of rehearing in M'Laughlin v Little it was not suggested that it could be relied on. The bill of review procedure was the way, and the only way, in which an enrolled decree could be varied or reversed on the ground of fresh evidence. 184 Since the provisions for appeals in and after 1880 an appellant has clearly been able to rely on fresh evidence, and in the appeal by way of re-hearing the fresh evidence will be considered together with the original evidence with a view to whether there should be a different result, including a new trial. The Court must give leave to bring the fresh evidence. The statutory appellate system performed and performs the same function as the bill of review, and fulfilled and fulfils its purpose. 185 A bill of review could be brought for twenty years; an appeal could and can be brought within a much more limited time. The questions on an application for leave to file a bill of review have been referred to earlier; the questions on an application to bring fresh evidence are similar although not necessarily identical (see for example Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435; Akins v National Australia Bank (1994) 34 NSWLR 155, but the statutory discretion may be more general, see Commonwealth Bank v Quade (1991) 178 CLR 134 and CDJ v VAJ (No 1)). It would be incongruous for the bill of review procedure to have survived the provisions for appeals in and after 1880. It can not have been intended that, side by side with the right of appeal, an appellant could in separate proceedings seek to have fresh evidence considered together with the original evidence with a view to a different result, perhaps many years later and perhaps after the appellate court had conducted a re-hearing with the same fresh evidence but declined to arrive at a different result. 186 Although these reasons have focussed on fresh evidence, a bill of review could be filed without leave for error of law appearing on the face of the decree. Decrees were lengthy and set out facts on which the decree was founded, so that a dissatisfied party could argue that in law the facts set out did not support the result. So far as the bill of review performed this function, it co-existed with the appeal to the House of Lords, for which the petition of appeal had to be presented within two years of the enrolment of the decree (Daniell, p 1361). This illustrates that there may be two procedures to the one end, and that one should not be over-ready to excise one procedure upon another becoming available. 187 It is perhaps pointless to ask whether the bill of review procedure has survived so as to permit, without leave, separate proceedings seeking to set aside an order on the ground of error of law on the face of the order. Orders are not now prepared in a manner which would accommodate such a challenge. That of itself illustrates how changed procedures bring changes of substance, a phenomenon not unknown in legal history. The caution against over-ready excision remains, and the plaintiffs argued that the continued availability of the bill of review procedure could serve to prevent injustice in the exceptional case. Against this must be balanced injustice capable of being worked through the bill of review procedure, with its opportunities for delay and expense. There is no doubt that the late nineteenth century reforms in legal procedures were intended to improve the administration of justice by promoting timely and final conclusion to litigation, and it would not be consistent with that purpose for the bill of review procedure to have survived. 188 It must be asked, why did and does the statutory appellate system do away with the bill of review procedure? 189 I would prefer not to use the language of jurisdiction to express the restraint on further litigation once proceedings have regularly come to an end, although it is often used (for example in Bailey v Marinoff). The word is used in different senses, and can bring confusion. By s 23 of the Supreme Court Act the Supreme Court of New South Wales has "all jurisdiction which may be necessary for the administration of justice in New South Wales". But that does not mean that it grants relief on a whim. It grants relief because a plaintiff establishes a breach of contract causing loss, or negligence or fraud causing loss, or some other basis for relief available according to law. I would prefer to say that the relief of setting aside an entered order and having a new trial on the ground of further evidence became and is not relief available according to law. 190 Handley JA invokes the proposition stated by Dixon J in R v Wallis (1949) 78 CLR 529 at 550, that an enactment in affirmative words appointing a course to be followed usually may be understood as importing that the same matter is not to be done according to some other course. The proposition was used to confine a general power to make an award or order determining a dispute because specific provision was then made for orders or awards determining disputes; see also The Queen v Gaudron (1978) 141 CLR 204 and Huskisson RSL Sub-Branch Club Ltd v Sullivan (1990) 20 NSWLR 332. As a proposition in the interpretation of statutes it is not in point unless the bill of review procedure be regarded as appellate in nature, and then with a degree of extension. It does, however, provide analogous reasoning to the exclusion of a general law remedy upon a statutory remedy becoming available. 191 The bill of review procedure was, as that description suggests, procedural; it was the way in which the Court of Chancery chose to exercise its jurisdiction. Taylor v Lawrence at 369 refers to the difference between the jurisdiction of a court and how that jurisdiction should be exercised. The label original or appellate did not matter. In 1873 in England, and in 1880 in New South Wales, there were other ways of fulfilling the purpose of the bill of review, ways which were not consistent with the continued use of the bill of review procedure. In my opinion it would be preferable to acknowledge that, changing the way in which jurisdiction is exercised, the bill of review procedure is no longer necessary or appropriate. 192 In Minister for Lands and Forests v McPherson (1990) 22 NSWLR 687 it was held that a statutory discretion in the Minister to forfeit or not forfeit a lease did not exclude equitable jurisdiction to grant relief against forfeiture, and there was reference to an assumption that a statute should operate alongside and in harmony with the common law. Exclusion of jurisdiction is not the issue here: the issue is how, in the light of the statutory scheme, the jurisdiction should be exercised. The statutory scheme could hardly operate in harmony with a continued ability to bring separate proceedings seeking to set aside an entered order, whether on the ground of error of law or on the ground of fresh evidence, nor would it be consistent with the purpose of the reforms bringing the statutory scheme that there should be the continued ability. In my opinion, since the 1880 provisions for appeal by way of re-hearing with fresh evidence the bill of review procedure has no longer been available. A single judge of the Equity Division can not set aside orders 1 and 7 made by Einstein J on 9 September 1998 and order a new trial on the ground of discovery of fresh evidence, and the plaintiffs' proceedings must fail for that reason. 193 I do not overlook the plaintiffs' submission that the fact that separate proceedings can be brought to set aside an order and have a new trial on the ground that the order was obtained by fraud shows that the bill of review procedure is still available. I have earlier described the distinction, and the reasons for the distinction, between the bill of review, on the one hand, and the original bill by which it was sought to set aside a decree on the ground that it was procured by fraud, on the other hand. The continued availability of the current manifestation of the latter does not support the continued availability of the former. 194 It should be recorded that Mrs Schipp submitted that, even if the bill of review procedure had survived to the present day, the plaintiffs' proceedings had to fail because first, the plaintiffs had not obtained prior leave to bring the proceedings, and secondly, the plaintiff had not paid the judgment debt or applied to be relieved from the need to do so. Prior leave has already been mentioned; prior payment of the judgment debt is referred to in, for example, Daniel, p 1427. It is not necessary to consider these suggested obstacles to success in the proceedings.

WHETHER RELIEF SHOULD BE GRANTED 195 Under s 75A of the Supreme Court Act further evidence is not received except on special grounds (s 75A(8)), save where it is evidence concerning matters occurring after the trial (s 75A(9)). The jurisprudence collected concerning special grounds generally calls for three conditions to be satisfied, that the evidence could not have been obtained by reasonable diligence for use at the trial; that the evidence is credible; and that the evidence is such that there is a high degree of probability that there would be a different result (for example, Akins v National Australia Bank (1994) 34 NSWLR 155 at 160). The conditions are, however, only guides, and special grounds can be made out in other circumstances (Commonwealth Bank of Australia v Quade; DCJ v VAJ (No 1)). Where special grounds need not be shown the guidance is less, but the public interest in the finality of litigation is of significance (Doherty v Liverpool District Hospital (1991) 22 NSWLR 284). 196 Although being heard in the Court of Appeal, the plaintiffs' proceedings are not an appeal. Section 75A does not apply. For a bill of review evidence must be fresh evidence and, in the words found in Hosking v Terry at 497; 583, such that if brought forward at the trial "it would probably have altered the judgment". The plaintiffs accepted as the statement of the test the formulation of Barwick CJ in McDonald v McDonald at 532 - "The discovery subsequent to verdict of admissible credible evidence, which could not have been sooner discovered by the exercise of reasonable diligence in the circumstances, and which is of such probative value and significance that, taken with the evidence already given at the trial, it will in all probability be decisive of the issues between the parties in a sense opposite to that of the verdict, is a ground for the granting of a new trial." 197 I proceed accordingly, without debating the matter further. 198 The first category of evidence was that of Mr Comelli. It comprised a few instances of Mrs Schipp saying something possibly reflecting a firm disposition and the hopelessly inadmissible generalisations set out in the reasons of Handley JA. It is impossible to know what lies behind the generalisations, but if it is of the same nature as the particular instances it would not justify them. In the particular instances the ostensible firm disposition may have been the product of Mr Schipp's influence, of the position of control enjoyed by the Schipps over tenants or would-be purchasers, or simply of wrong-headedness on Mrs Schipp's part, and it is also impossible to know what lies behind the particular instances. As explained by Handley JA, the evidence is of matters years earlier in quite different circumstances from those the subject of the proceedings decided by Einstein J. 199 It is not as if the plaintiffs were brought to contend that Mrs Schipp's past property interests and dealings showed her to be worldly-wise only after the trial, since she was extensively cross-examined upon them. Assuming that it is to be regarded as fresh evidence, the evidence of Mr Comelli is all but worthless. It certainly would not in all probability lead to a different result. 200 The second category of evidence was that of Mr Murphy, including his letter of 10 November 1994. To the contrary of his evidence at the trial, Mr Murphy had been at the meeting on 8 December 1988, and Mrs Schipp was also at the meeting. I would prefer to leave undetermined whether Mr Murphy's evidence could not be regarded as fresh evidence because he had given evidence at the trial - later recollection may be different from later admission of perjury. For the further reasons indicated by Handley JA, that there was not the due diligence on Mr Harrison's part which would have brought to light Mr Murphy's 1994 recollection and that the evidence would not in all probability lead to a different result, grounds for setting aside the orders made by Einstein J are not made out. 201 The third category of evidence was that going to Mr Baird's file notes. Dr Strach's report raised some questions to which there are many possible answers not involving malpractice in creation of the file notes, and lead nowhere. There was nothing fresh about the file notes of 27 and 31 May 1990, the internal inconsistency and any inconsistencies with what had truly happened being known or apparent to the plaintiffs at the time of the trial. The plaintiffs added the speculation (for that is what it was) that Mr Baird had used the letter from Mr Burke to Mr Lewis to create the file note of 31 May 1990, but that letter had been in evidence at the trial. All this was no more than an attempt to put a different case from that which could have been put, on the same materials, at the trial. There is in truth no question of fresh evidence at all. It is not necessary to consider the possible significance for the credibility of Mr Baird, and thereby for the findings about the conduct of Mrs Schipp, Mr Harrison and Mr Cameron. 202 The plaintiffs properly submitted that the further evidence should not be seen in compartments, but should be looked at overall for its significance to the result of the trial. Looking at it overall, in my opinion grounds have not been made out for the relief claimed in the proceedings. 203 I agree with the orders proposed by Handley JA. 204 IPP AJA: I agree with the reasons to be published by Handley JA. I set out below my own reasons for concluding that the old Chancery bill of review procedure has long been abolished in New South Wales. I agree with the views expressed by Handley JA concerning the material said to be fresh evidence and as to the conflict of interest on the part of Mr Harrison. I agree with the orders proposed by his Honour.

The jurisdictional question and the parties' contentions 205 The defendant brought proceedings against the plaintiff, alleging principally that he had breached fiduciary duties he owed to her. Einstein J held in favour of the defendant and ordered the plaintiff to pay her equitable compensation. On appeal, this judgment was affirmed in part and varied in part. The orders thereupon made by this Court were duly entered.

206 Thereafter, the plaintiff commenced a new action in the Equity Division, seeking orders setting aside the orders made by the Court of Appeal and Einstein J and claiming a new trial. The basis of the plaintiff's cause of action is the assertion that fresh evidence, not involving fraud, has been discovered that, if available before Einstein J, would have led to a different result.

207 The defendant contends that the Supreme Court has no jurisdiction to entertain such an action and challenges the plaintiff's right to bring it. The issues that so arise have been referred to this Court for decision.

208 For the purposes of these reasons I shall assume that the judgment of Einstein J was given entirely within the equitable jurisdiction of this Court. 209 Mr Gageler SC (with whom Mr Lucarelli appeared for the plaintiff) submitted, in summary, that:

(a) Prior to the Judicature Act 1873 (UK) (36 and 37 Vict 66), the Court of Chancery - by its bill of review procedure - had jurisdiction to set aside final decrees entered in Chancery on the ground of fresh evidence not involving fraud.

(b) This jurisdiction survived the Judicature Acts as well as the equivalent New South Wales legislation (in particular ss 21 and 22 of Act 4 Vict. 22 (1840), and s 71 of the Equity Act (1880) 44 Vict. 18). It also survived s 75A of the Supreme Court Act 1970. 210 In support of his principal submissions, Mr Gageler argued further:

(a) The Supreme Court of New South Wales retains its equitable jurisdiction to set aside a judgment on the ground of fraud; that jurisdiction is properly invoked by way of a separate action (although it may also be invoked in an application to the Court of Appeal for a new trial: Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691) and is properly characterised as a continuation of the equitable jurisdiction formerly exercised on a bill of review; just as the equitable action of review on the ground of fraud survives, so does the equitable action of review on the ground of fresh evidence.

(b) Comments made by Jessel MR in Flower v Lloyd (1877) 6 Ch Div 297 support the continuing existence of the equitable action of review on the ground of fresh evidence, and the reasoning apparently to the contrary of Jessel MR In re St Nazaire Company (1879) 12 Ch D 88 (often quoted as authority for the proposition that the old Chancery procedures for setting aside judgments were abolished by the Judicature Act ) was directed to jurisdiction to entertain a proceeding in the nature of a petition for rehearing and not to an action in the nature of a bill of review.

(c) The Judicature Act conferred jurisdiction on the Court of Appeal to hear all appeals, and provided for appeals to be by way of rehearing; the Act thereby displaced only those old Chancery procedures that were appellate in nature and not those that were exercised by way of original jurisdiction; the bill of review procedure was based on jurisdiction original in nature and therefore it survived the Act; to the extent that In re St Nazaire Company and In re Barrell Enterprises (1973) 1 WLR 19 differ, they are wrong.

(d) Moreover, the pre- Judicature Act jurisdiction of the Court of Chancery to "rehear" a case differed from its jurisdiction to "review" a case; therefore the jurisdiction of the Court of Appeal to hear appeals "by way of rehearing" did not include the bill of review procedures.

(e) Cases such as Orr v Holmes and Another (1948) 76 CLR 632, McCann v Parsons (1954) 93 CLR 418 and McDonald v McDonald (1965) 113 CLR 529 support the proposition that the action contended for by the plaintiff exists. 211 Mr Slattery SC (with whom Mr Hennessy appeared for the defendant) disputed these arguments and, in summary, submitted that:

(a) By the Judicature Act of 1873, the entire Chancery bills of review system (save for the remedy based on fraud) was transferred to the newly constituted Court of Appeal, and, was thereby abolished; he relied particularly on In re Barrell Enterprises for this proposition.

(b) There was no difference, in substance, between the Judicature Acts and the equivalent New South Wales legislation, and the latter legislation had the same result.

(c) The bill of review procedure involved a "rehearing" and under the relevant New South Wales legislation (in particular s 71 of the 1880 Equity Act ) the Full Court of New South Wales acquired the sole jurisdiction (to which this Court has succeeded) to hear claims that were based on that procedure

(d) In consequence, the bill of review procedure did not survive in this State, at least after the Equity Act .

The finality of litigation principle and In re Barrell Enterprises 212 Ever since the Judicature Act the principle of finality in litigation has been of fundamental importance to our legal system. Its significance has been the foundation of innumerable decisions. It is sufficient to refer in this regard to Wentworth v Woollahra Municipal Council (1982) 149 CLR 672, Nintendo Company Limited v Centronics Systems Pty Limited (1994) 181 CLR 134 at 168 and Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.

213 Were the plaintiff's contentions to be correct, there would be a strong incentive, even after judgment had been delivered by the highest court in the land, for the unsuccessful party to continue to investigate the facts in the hope of discovering some fresh witness or fresh material that could make a difference to the result. Years later new proceedings could be launched with a view to setting aside the judgment. Uncertainty as to the validity of the final judgment would prevail, with all its concomitant disadvantages to individuals and the community - including much increased costs and delay of a kind that would be familiar to the Jarndyce family. The finality of litigation would be subverted: Autodesk Inc v Dyason (No 2) at 310 per Brennan J.

214 It is no wonder then that in In re Barrell Enterprises (where the same point was raised) Russell LJ (who delivered the judgment of the Court - the other members being Karminski and Cairns LJJ) commenced his discussion of the issue by saying (at 24): "The next question is whether Brightman J, had any jurisdiction to hear an application to set aside the order of Pennycuick V-C. We are reluctant to find carried forward into this century procedures which were devised for review or rehearing or new trial at a time when the Court of Appeal did not exist. We can accept without difficulty the notion that if a judgment has been obtained by fraud an action can be brought to set it aside. But when it comes to setting aside a judgment on the ground that fresh evidence has been obtained it appears to us highly desirable that the Court of Appeal alone should have jurisdiction. Then the rules as to time for appeal, with the discretion to allow an appeal out of time, will apply. So will the code for deciding when fresh evidence should be admitted …"

215 The contention that the plaintiff in this case advances was argued and rejected on two grounds in In re Barrell Enterprises. Russell LJ held, firstly, following In re St Nazaire Company, that the Chancery bill of review procedure involved a rehearing and the jurisdiction to order such a rehearing was appellate and was vested by the Judicature Act in the Court of Appeal and not in the High Court. Secondly, he said (at 27): "Even if, technically, the High Court was at first clothed with this jurisdiction we are of opinion that this cause of action has long since lapsed because applications for rehearing on the ground of fresh evidence have for generations been made only to the Court of Appeal". 216 In Australia, ever since Bailey v Marinoff (1971) 125 CLR 529, it has been accepted that "…. when an appeal has been finally disposed of in a Court of Appeal by an order duly entered it has no inherent power to reopen the case on an application made after the order has been entered. That general proposition is no doubt subject to the rule that a judgment apparently regularly obtained may be impeached upon the ground of fraud ….". per Aickin J in Gamser v The Nominal Defendant (1977) 136 CLR 145 at 154. The exception to this principle, accepted in Taylor v Lawrence [2002] 2 All ER 353, is not recognised in Australia.

The coming into force of the Judicature Act 217 As the arguments raised by the plaintiff require the Judicature Act to be construed, it would be appropriate to say something about the climate under which it was passed. 218 Sir William Holdsworth in Vol 1 of History of English Law, in describing (at 437 et seq) the delays that were inherent in the procedures of the Court of Chancery prior to the passing of the Judicature Acts, said (at 438): "The existing delays were aggravated by the system of rehearings and appeals which a determined litigant could demand upon the most trivial points. … Upon these appeals and rehearings, other than appeals to the House of Lords, new evidence could be adduced ( Maddock , Chancery (Ed. 1815) ii 439-440). This was clearly a practice which tended still further to lengthen the proceedings. As Beames, the secretary to the Chancery Commission of 1826, said justly, 'a right of litigation which is limited alone by the means of gratifying it, places the poor suitor at the mercy of his rich antagonist; and at the same time operates this hardship upon the other suitors of the court, that their causes are necessarily postponed to make way for the discussion and rediscussion of the same question between the same parties" 219 The learned author dealt with the delays that prevailed in obtaining and drafting decrees in Vol 9 at 365 et seq, saying (at 368): "Even when the decree had been drafted, the suitor was by no means out of the wood. At any time before enrolment a petition for rehearing could be made to the Chancellor or other Judge who had heard the case; and for that reason no one was in any hurry to enrol the decree. In some cases, even, it was possible to vacate the enrolment. If this was not possible, the aggrieved party could still proceed by Bill of Review".

And concluded (at 369): "It thus appears that the impossible attempt of the Court to produce a perfect decree prevented any kind of decent finality". 220 The depth of public feeling at the delays and other abuses in the system was graphically described by Professor Sunderland in The English Struggle For Procedural Reform (1926) 39 Harv L Rev 725. Sunderland made the point (at 727) that the Judicature Act was passed after: "… the long war of liberation waged in England against the tyranny of inherited legal traditions". 221 It is noteworthy that (1850) 13 & 14 Vic 35 (one of the earlier attempts to simplify Chancery procedure and to reduce the delays inherent in it), commences: "Whereas proceedings in the High Court of Chancery in England are attendant with great delay and expense, which it is expedient to diminish". 222 The bill of review procedure played its part in these delays.

The Judicature Act and its influence on New South Wales legislation 223 The Judicature Act was passed on 5 August 1873. According to Holdsworth (op cit Vol 15 at 128) the Act provided a comprehensive code of civil procedure.

224 By s 16 the jurisdiction of the High Court of Chancery was transferred to the High Court of Justice. The Court of Appeal was established by s 4 and acquired such original jurisdiction "as may be incident to the determination of any appeal". By s 18 all jurisdiction and powers of the Court of Appeal in Chancery were transferred to and vested in the Court of Appeal established by the Act. Section 22 provided: "From and after the commencement of this Act the several jurisdictions which by this Act are transferred to and vested in the said High Court of Justice and the said Court of Appeal respectively shall cease to be exercised, except by the said High Court of Justice and the said Court of Appeal respectively as provided by this Act". 225 Meagher Gummow and Lehane state in their work Equity Doctrines and Remedies 3rd ed at para 215: "All the Australian colonies, with the exception of New South Wales, followed fairly quickly in their parent's steps by enacting statues modelled on the Judicature Act …. The present statutory equivalents of ss 24 and 25 in the English Act of 1873 are found in New South Wales in the Supreme Court Act 1970 ss 57-64 and the Law Reform (Law and Equity) Act 1972". 226 As the learned authors point out (at para 216) most of the changes contained in the Judicature Act were adopted in New South Wales long before the 1970 Supreme Court Act. It is sufficient to note that by s 70 of the Equity Act 1880 (NSW) any person aggrieved by any decree or order of the Court (including an equitable decree) was given the remedy of appealing to the Full Court and by s 71 all appeals were required to be by way of rehearing.

The meaning of "rehearing" 227 The term "rehearing" is capable of different meanings. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor (1976) 135 CLR 616 Mason J said (at 619) that the most notable example of an appeal by way of rehearing is the appeal to the English Court of Appeal provided for by the Judicature Act. His Honour remarked (at 619-620): "It was provided that the appeal should be by way of rehearing and that the Court should have power to take fresh evidence and draw inferences of fact … The appeal had its origin in the jurisdiction of the Court of Appeal in Chancery established by 14 and 15 Vict. c 83 to rehear cases determined in Chancery. This appeal by way of rehearing involves rehearing of the cause at the date of the appeal, that is 'by trial over again on the evidence used in the Court below; but there is special power to receive further evidence' ( In re Chennell; Jones v Chennell (1878) 8 ChD 492 at 505). On such an appeal the rights of the parties might be determined by reference to the circumstances as they then exist and by reference to the law as it then exists; the appellate Court may give such judgment as ought to be given if the case at that time came before the Court of first instance. But this appeal by way of rehearing did not call for a fresh hearing or hearing de novo; the Court does not hear the witnesses again". 228 In Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 Gleeson CJ, Gaudron and Hayne JJ said (at 202 to 203): "If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing". 229 Nevertheless, as Mason J observed (at 620) in Builders Licensing Board v Sperway Constructions (Syd) Proprietary Limited & Anor the term "rehearing" has also been used to describe a hearing (usually called an appeal de novo) where the appellant starts again and has to make out his case and call his witnesses. The nature of the bill of review procedure: did it involve a rehearing? 230 The object of a bill of review was to "examine and reverse decrees signed and enrolled": A Treatise on the Pleadings in Suits in the Court of Chancery, Mitford (Lord Redesdale), 5th Ed at 97; Daniell's Chancery Practice, Vol 2, 5th Ed (1871) at 1422. A bill of review might be brought upon error of law appearing in the body of the decree or upon discovery of new matter: Mitford op cit at 101; Daniell op cit at 1422.

231 A plaintiff did not have the automatic right to file a bill of review based on newly discovered facts; leave of the Court was required. The application for leave to file the bill was made by petition for rehearing or on motion: Daniell op cit at 1423.

232 In a petition or application for leave, the petitioner or applicant had to show that; according to Daniell (at 1423): "[T]he matter so discovered has come to the knowledge of himself and of his agents for the first time since the period at which he could have made use of it in the suit, and that it could not, with reasonable diligence, have been discovered sooner; and secondly, that it is of such a character that, if it had been brought forward in the suit, it might probably have altered the judgment" (per Lord Kingsdown in Hosking v Terry (1862) 15 Moore 493 at 504; 15 ER 581 at 585). 233 Leave would ordinarily be granted if: "On the former evidence in the cause, coupled with what is now adduced, and with no other or further evidence, it would have induced me to make a different decree to that which I then pronounced" ( per Romilly MR in Thomas v Rawlings (1864) 34 Beav.50 at 54; affirmed on appeal 11 LT 721 ); see also Hungate v Gascoyne (1846) 2 PH 26. 234 It is difficult to determine from the older authorities precisely what procedure was involved in the hearing once leave to proceed with a bill of review was granted. According to an article by Mr D M Gordon QC entitled "Fraud or New Evidence as Grounds for Actions to Set Aside Judgments" - Pt II (1961) 77 LQR 533 at 555: "In all cases, the plaintiff must begin by producing his new evidence, and by showing that that this is newly discovered, and not discoverable before by exercise of diligence. Unless this new evidence is strong and convincing, the Court may dismiss the action at once. But in dealing with even this new evidence, the Court may decide to treat it as a separate subject - matter, and hear evidence on both sides before going on, or may treat the new evidence as merely a portion of an integral case, in which the plaintiff must submit all of his evidence called at the first trial as well as his new evidence".

Later, (at 556-557) the learned author wrote: "So in general review calls for a hearing in which both the old and the new evidence are weighed together. The course of such a hearing seems to have varied in different cases. The main problem is whether the old evidence should be reheard or reweighed by reading the record of it. Before the Judicature Act matters were simplified because the first trial and the second were usually held before the same judge without a jury. So when he had heard the new evidence, there was often no need for him to rehear the old orally; he would recall the evidence or refresh his memory from the record and so weigh the old against the new. However, this course might not be followed; sometimes all the evidence was reheard orally. At other times the court had no record of the first trial to reread." 235 There are older cases in which the bill of review procedure is described as a "rehearing". I shall give some examples of cases of this kind.

236 In Perry v Phelips (1810) 17 VS.Jun.173 at 178, bill of review proceedings, being an objection (to a decree) on the ground of "matter of law apparent" were said by Lord Eldon to be "the subject of a rehearing". To similar effect is Oldham v Stonehouse (1838) 3 M & C 317.

237 In Thomas v Rawlings Romilly MR, having given the petitioner leave to file a bill of review on the ground of new evidence, said (at 56) that the respondents "must have an opportunity of meeting the case now suggested, and which will be made at the rehearing of the case."

238 In Maybery v Brooking (1855) 7 De G. M & G 673: 2 Jur.N.S.76 judgment had been given by Kindersley V-C. The plaintiff considered that all the materials in the case were not fairly before the Vice-Chancellor and applied to him to "rehear the cause". The application was granted, but the Vice-Chancellor "on the rehearing" adhered to his former opinion "and dismissed the bill without costs". The plaintiff appealed to the Court of Appeal who considered that they were entitled to rehear the matter, themselves.

239 Mr Gageler referred to Charles Bright and Company Limited v Sellar (1904) 1 KB 6 where Cozens-Hardy LJ said (at 11): "It is important to remember that in the Court of Chancery, until comparatively modern times - that is to say, until the reign of Charles II - there was no appeal from the Lord Chancellor to any higher tribunal, but an opportunity was afforded of correcting decisions by means of a rehearing, which might be before the same or any other judge. This right of rehearing could, however, only be exercised before a decree or order had been enrolled, up to which time it was not considered to be, in the full sense of the term, a record of the Court. If an enrolled order was bad on the face of it, a means existed for correcting such an order by a bill of review." 240 Mr Gageler submitted that these remarks showed that a bill of review was not a rehearing. But the older authorities to which I have referred, as well as the article by Mr Gordon QC, show that, at least on occasions - if not as a rule - the bill of review procedure directed at enrolled decrees was described as a rehearing. 241 In any event, I repeat that where leave to proceed with a bill of review was required, a petition for rehearing was sought. The proposition that a successful petition for rehearing would not result in a rehearing but in some other kind of procedure known as a review is incongruous. Rather, it seems to me, the bill of review procedure involved a rehearing at which the decree, previously made and enrolled, would be reviewed. 242 It is sufficient to state that, at a rehearing pursuant to a bill of review based on new matter, it would often be the case that the new evidence would be led and would be weighed against the evidence already led at the original hearing. That is to say, the bill of review procedure, generally, involved what in modern times is generally accepted as an appeal by way of rehearing.

The bill of review distinguished from a bill impeaching a judgment for fraud 243 Before examining the authorities dealing with the effect of the Judicature Act on the bill of review procedure, it is necessary to explain how the pre-Judicature Act bill for impeaching decrees upon the ground of fraud differed from a bill of review.

244 A bill for impeaching a decree upon the ground of fraud was not a bill of review but a separate bill of a different kind: see Daniell op cit at 1422 and 1428, Mitford op cit at 97).

245 Unlike a bill of review, a bill for the impeachment of a decree on the grounds of fraud could proceed without the leave of the Court: Daniell 5th Ed at 1428 (although Gordon, op cit, at 546, suggests that leave for a bill impeaching a judgment on the grounds of fraud was required from 1860).

246 A significant difference between a bill impeaching a judgment for fraud and a bill of review involved the nature of the hearing at which the original decree was challenged.

247 When a judgment was sought to be impeached on the ground of fraud, the position was as described by James LJ in Flower v Lloyd (at 302): "But that must be done by a proceeding putting in issue that fraud, and that fraud only. You cannot go to your adversary and say, 'You obtained the judgment by fraud, and I will have a rehearing of the whole case' until that fraud is established. The thing must be tried as a distinct and positive issue; 'you' the Defendants or 'you' the Plaintiff 'obtained that judgment or decree in your favour by fraud; you bribed the witnesses, you bribed my solicitor, you bribed my counsel, you committed some fraud or other of that kind, and I ask to have the judgment set aside on the ground of fraud.' That would be tried like anything else by evidence properly taken directed to that issue, and wholly free from and unembarrassed by any of the matters originally tried. That was the old course of the law, and there seems to be no reason why that should not be now followed; and if it is true that there was a fraud practised upon the Court, by which the Court was induced to make a wrong decree, the way to obtain relief will be to bring a fresh action to set aside the decree on the ground of fraud."

248 The modern procedure is not dissimilar to that described by James LJ. As Taylor J pointed out in McDonald v McDonald (at 535), a judgment will be set aside on the ground of fraud only after an affirmative finding of the fraud alleged. 249 Thus, ordinarily, in proceedings pursuant to a bill to impeach a judgment on the ground of fraud, the fraud would be tried separately from the other issues in the case and the old and the new evidence would not be weighed together as in the procedure relating to a bill of review. 250 The differences were remarked upon by Gordon (op cit at 557) as follows: "Where review is not based on fraud, but merely on discovery of new evidence, the course of the proceedings should seemingly be assimulated to that where perjury is set up. New evidence will be directed to the rightness of findings of fact; and so review based on it will have little affinity to review for extrinsic fraud".

251 A further and important distinction lies in the nature of the remedies that follow from the two procedures. 252 As long ago as 1748 it was said by the Lord Chancellor, Lord Hardwicke, in Barnesly v Powell (1748) 1 Ves.Sen.120 that: "There are several instances of relief, notwithstanding a former decree, if obtained by fraud and imposition, which infects judgments at law and decrees of all courts; and annuls [my emphasis] the whole in the consideration of this court; as held by Lord Macclesfield in Richmond v Taylour ." 253 The idea of the court annulling the whole judgment was reiterated by the Earl of Selborne in Boswell v Coaks (No 2) 6 R 167, 86 LT 365, where he spoke of the action to impeach a judgment on the grounds of fraud as being an action, in effect, of judicial rescission.

254 In the case of a bill of review, the decree was not "annulled" in the same sense. In bill of review proceedings, where the new evidence was "directed to the rightness of findings of fact" and where both the old and the new evidence were weighed together, all or some of the issues canvassed at the trial would be re-opened and re-examined and findings would be made concerning them (cf Hungate v Gascoyne). The court might then reverse, alter or explain the decree: Daniell op cit at 1422.

255 In my opinion, the differences between the form and substance of the procedures for the impeachment of a judgment on the grounds of fraud and the Chancery bill of review procedure are such that no inference can be drawn from the court's jurisdiction in regard to the former when determining the court's jurisdiction in regard to the latter. 256 Finally, in this respect, due regard has to be given to the fact that fraud is one of the "pillars which support the entire structure of the equitable jurisdiction" (Meagher Gummow and Lehane, op cit at para 1207). It has always been recognised that "[e]quity has a broad jurisdiction to unravel fraud and set to right its consequences" (per the full Federal Court in Monroe Schneider Associates (Inc) v No 1 Raberem Pty Limited (1992) 37 FCR 234).

The jurisdiction to impeach judgments obtained by fraud is so deeply embedded in equity that very clear words would be required in any legislation before it would be construed as interfering in any way with the powers of a court of equity in this respect. On the other hand, the jurisdiction of a court of equity to review judgments on the ground of fresh evidence stands on a less entrenched footing, and the intention of parliament to transfer that jurisdiction to another court, or otherwise to remove it, would more readily be inferred.

The cases in England since the Judicature Act 257 In Flower v Lloyd final judgment was pronounced against the plaintiff by the Court of Appeal dismissing his action with costs. The plaintiff then applied for leave for a rehearing of the appeal before the Court of Appeal on the ground of the subsequent discovery of new facts showing that the order of the Court of Appeal was obtained by a fraud practised on the Court below. Flower v Lloyd, therefore, was a case where the relief sought was based on an argument that the judgment was tainted by fraud.

Jessel MR accepted that prior to the Judicature Act the Court of Chancery had jurisdiction to give relief in such case. He said (at 300) that under the old practice "you could have brought an original bill to impeach a decree for fraud, and could have got relief if fraud in obtaining the decree was proved". He proceeded: "There was another totally different class of cases where you discovered subsequent matter which showed that the decree was wrong, although there had been no fraud in obtaining it. That was called a supplemental bill in the nature of a bill of review, which brought the new matter forward, and again enabled the Court to do justice and get rid of the original decree".

Jessel MR went on (at 300) to say, in effect, that there would be no difficulty in the plaintiff obtaining relief from the High Court in respect of the class in which this case fell. He said, however, that the Court of Appeal was "simply a Court of Appeal and nothing more;" hence, the plaintiff failed. Once the Court had determined an appeal it had no further jurisdiction.

The other two members of the Court of Appeal (James and Bagallay LLJ) were of the same opinion but did not express any view as to whether the supplemental bill of review procedure remained alive. 258 Mr Gageler submitted that the remarks made by Jessel MR concerning the supplemental bill of review procedure supported the plaintiff in this case. 259 A supplemental bill in the nature of a bill of review was a bill used to introduce new matter discovered since the making of the decree but before the decree was signed and enrolled: Mitford op cit at 108. Such a supplemental bill differed from a bill of review: Mitford op cit at 97. The procedure akin to a supplemental bill in the nature of a bill of review remains part of our law today: Smith v New South Wales Bar Association [No 2] (1992) 176 CLR 256. It is different in nature to the bill of review procedure which concerned the reversal, alteration or explanation of an enrolled decree.

260 In my opinion, the fact that Jessel MR was of the view that the supplemental bill in the nature of a bill of review had not been displaced by the Judicature Act says nothing about the continuation of the bill of review procedure based on new evidence. I therefore do not agree with Mr Gageler's submissions in this respect. 261 I turn now to In re St Nazaire Company. In this case Malins V-C ordered that the claim of liquidators of the European Bank be admitted against the St Nazaire Company. The company appealed from this order and its appeal was dismissed with costs. Thereafter, the St Nazaire Company filed a petition alleging that Malins V-C had been misled by the evidence before him and asking, in effect, for an order that it not be required to satisfy the claims of the Bank. Malins V-C ordered that the petition be allowed to proceed. The Bank appealed. Jessel MR accepted (at 93) that, in essence, the petition was for rehearing and observed (at 96 to 97) with some impatience: "[I]t is a petition presented to a judge of the High Court to rehear a decision of the Appeal Court … The mere statement of that would be sufficient to show that the judge below had no jurisdiction. It would be a wonderful result indeed if the Judicature Act empowered a judge of an inferior court to rehear a decision of the Appeal Court which perhaps had reversed his decision. Upon that theory, how long is the thing to go on? If the judge below has this power, he may exercise it by reversing the decision of the Appeal Court where the Appeal Court had reversed his decision. Then it was said that under the old practice the Court of Chancery, that is, the judges of the Court of Chancery, the Lord Chancellor, the Master of the Rolls, and the Vice-Chancellor, could rehear not only their own decrees, but the decrees of their predecessors, that is, those whom they succeeded. No doubt it was so, but does that jurisdiction continue? If it does, the most extraordinary results will follow. The power to rehear was confined by General Orders. The time allowed had been 20 years but at last it came down to 5 years, and the power to appeal given by the new rules is only for 1 year; therefore if such a power were considered to remain vested in the Judges of the High Court it would follow that after the lapse of 1 year you could not appeal at all, but you might at any time within 5 years present your petition of rehearing to the Judge himself, and then, if he refused it on the ground that he thought he was right before, which would be the most probable result, you could then appeal to the Appeal Court, and thereby get 5 or 6 years for appealing instead of 1. That would be so remarkable a result that hardly anyone could believe that such was the true construction of the Act of Parliament or the rules."

Jessel MR (at 99) said that he was satisfied upon a fair reading of the Judicature Act that the Court below had no jurisdiction.

Baggallay and Thesiger LLJ each agreed with Jessel MR and each gave additional reasons supporting the conclusion to which he had come. 262 Mr Gageler submitted that In re St Nazaire is not relevant to the present issue as it involved a procedure equivalent to a petition for a rehearing but not a bill of review. I agree that the case was concerned with such a procedure but that does not detract from the force of the remarks of Sir George Jessel and their application to bills of review. 263 The petition for rehearing In re St Nazaire was an essential preliminary step prior to the hearing of a procedure analogous to the pre-Judicature Act bill of review. The remarks of Jessel MR were directed as much to the final process as to the petition of rehearing. The "remarkable" result with which he was concerned was a decision that a bill of review type procedure could ensue (were the petition of rehearing to be successful). The extraordinary delays he described would be the inevitable consequence of recognising the continued existence of such a procedure. This underlies his acerbic comments. 264 In Salt v Cooper (1880) 16 ChD 544 Jessel MR again described the transfer of jurisdiction effected by the Judicature Act. He said (at 549):

"It is stated very plainly that the main object of the [Judicature] Act was to assimilate the transaction of Equity business and Common Law business by different Courts of Judicature. It has been sometimes inaccurately called 'the fusion of law and equity'; but it was not any fusion, or anything of the kind; it was the vesting in one tribunal of the administration of Law and Equity in every cause, action or dispute which should come before that tribunal. That was the meaning of the Act".

265 In Quilter v Mapleson (1882) 9 QBD 672 Jessel MR returned to the topic once more. He referred to the practice prior to the Judicature Act in the Court of Chancery in regard to "rehearings" and said (at 676): "On an appeal strictly so called, such a judgment can only be given as ought to have been given at the original hearing; but on a rehearing such a judgment may be given as ought to be given if the case came at that time before the Court of first instance. This point often arose in the Court of Chancery where there was no strict appeal, but only a re-hearing before a superior Court. …. It was in my opinion intended [by the Rules of Court] to give appeals the character of rehearings, and to authorise the Court of Appeal to make such order as ought to be made according to the state of things at the time". 266 In McGowan v Middleton (1883) 11 QBD 464 Brett MR emphasised the importance of the creation of the Court of Appeal as a feature of the new comprehensive code created by the Judicature Act. He said (at 468) in this regard: "The great object of the Court of Appeal has been to make litigation as short, as cheap, and as safe for the suitors as is practicable. When first I sat as a judge in the Court of Appeal, it was often presided over by James LJ, one of the greatest of judges: I have never met a judge of a larger mind or more inclined to break down technicalities of equity as well as law; and he acted on the principle that under the Judicature Acts when litigation should arise, all matters in dispute should be before the Court. The fundamental idea of the framers of those Statutes is to be found in the Judicature Act , 1873, s 24 sub-section 7, which enacts that the High Court of Justice and the Court of Appeal shall grant all such remedies as any of the parties may appear to be entitled to in respect of any legal or equitable claim; 'so that, so far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any such matters avoided'. Every endeavour has been made to carry out this principle and all the judges have tried to bring litigation to an end as speedily as possible". 267 A dissentient voice was heard in Falcke v The Scottish Imperial Insurance Company (1887) 57 LT 39 where Kay J said (at 39 to 40): "It was said that the old jurisdiction of the Court of Chancery to allow a bill of review is now abolished. The proposition is startling, and there is no authority in support of it, and in my opinion it is not the law. The old jurisdiction to entertain an action in the nature of a bill of review was unaffected by the Judicature Acts , though the leave to bring such an action is now more usually obtained by summons instead of the long petition, which was formerly necessary".

The judge's observation that no authority supported the abolition of the old bill of review jurisdiction is difficult understand as he was referred to In re St Nazaire Company . Further, in my view, the remarks of Jessel MR in Salt v Cooper and Quilter v Mapleson and Brett MR McGowan v Middleton were quite inconsistent with the continued existence of the bill of review procedure. 268 In re Scott & Alvarez's Contract [1895] 1 Ch 596 Kekewich J exercised the same jurisdiction as that exercised by Kay J in Falcke v Scottish Imperial Insurance Company but it appears (at 623) that counsel conceded that, having regard to Falcke, he "could not here argue to the contrary". The matter proceeded to the Court of Appeal but the jurisdictional issue was not there touched upon.

269 In 1894 the House of Lords delivered their judgment in Boswell v Coaks (No 2). The appellant asserted that a judgment given by the House of Lords had been obtained by the fraud of the respondent. The Earl of Selborne made observations that arguably were suggestive of a view that in substance the old practice of a Court of Chancery applicable to the bills of review may have survived but in a simpler and less technical form. He said (at 366): "[T]he Court ought to receive such evidence pro and con as is material to the question whether there has really been, since the former judgment, a new discovery of something material in the sense, that prima facie it would be a reason for setting the judgment aside if it were established by proof".

His Lordship, however, was dealing with a case grounded on fraud and, in context, there is much to be said for the view that his observations were intended to apply only to the procedure for the impeachment of a judgment on the grounds of fraud. They were, in any event, obiter. 270 In Ainsworth v Wilding (1896) 1 Ch 673 Romer J was concerned with the jurisdiction of the High Court to deal with a judgment that had been entered but which contained a mistake. He said (at 676 to 677): "Formerly the Court of Chancery had power to rehear cases which had been tried before it even after the decree had been entered; but that is not so since the Judicature Acts ".

In effect, Romer J followed what had been previously decided in Salt v Cooper , Quilter v Mapleson and McGowan v Middleton . 271 Charles Bright and Company Limited v Sellar concerned an action brought to review an order of the High Court on the ground of error in law apparent on the face of the order. The judge before whom the action was heard held that the action could not be maintained and the plaintiff appealed to the Court of Appeal. Cozens-Hardy LJ (who gave the judgment of the Court) pointed out (at 11-12) that, as the order absolute had not been enrolled: "[t]he procedure by bill of review, therefore, could not have been applied under the old system. A petition of rehearing might have been presented, but that would have been the only remedy. Now it has been held that since the Judicature Act no judge of the High Court has jurisdiction to rehear, such jurisdiction being essentially appellate : In re St Nazaire Company 12 ChD 88. It seems to follow logically from what has been said that the High Court has now no jurisdiction to hear its own order on the ground of apparent error, by means of an independent action, and that the party complaining must come to the Court of Appeal". Cozens-Hardy LJ said further (at 12): "Doubtless there is ample jurisdiction now to deal by fresh action with some matters which were formerly the subject of a bill of review, or of a supplemental bill in the nature of a bill of review. For instance, where a judgment has been obtained by fraud, Birch v Birch (1902) P 130, or where fresh material evidence has been obtained since the judgment which could not have been previously procured Boswell v Coaks (No 2) 6 R 167, an action be maintained. Actions of this nature do not invite the High Court to rehear upon the old material. Fresh facts are brought forward and the litigation may well regarded as new and not appellate in its nature because not involving any decision contrary to the previous decision of the High Court".

His Lordship then went on to approve the view of Kay J in Falcke v Scottish Imperial Insurance Company that a fresh action on the ground of discovery of new material could be maintained. 272 The following comments may be made concerning the remarks of Cozens-Hardy LJ. Firstly, they were unnecessary for the decision and were obiter. Secondly, as I have pointed out, Boswell v Coaks (No 2) was itself a fraud case, the remarks of Lord Selborne in that case were themselves obiter and, in any event, because they were arguably confined to cases of fraud, they are of doubtful authority for the proposition that an action can be maintained to set aside an entered judgment on the ground of new matter not constituting fraud. Thirdly, Cozens-Hardy LJ erroneously treated a bill to impeach a judgment on the grounds of fraud as the equivalent of bill of review or a supplemental bill in the nature of a bill of review. Fourthly, the old jurisdiction to reverse or alter a decree by way of a supplemental bill in the nature of a bill of review was not available when the decree was enrolled; therefore, the earlier supplemental bill jurisdiction provides no support for the existence of a post Judicature Act jurisdiction to allow a "fresh action" to set aside an entered judgment on the ground of new evidence. Fifthly, Cozens-Hardy LJ appears to have approved In re St Nazaire Company, but nevertheless postulated the continued existence of jurisdiction analogous to the bill of review procedure; the two, in my view, cannot stand together.

In my view, Charles Bright and Company Limited v Sellar should not be regarded as an authority of weight. 273 In re Barrell Enterprises Russell LJ said (at 25 to 26): "In In re St Nazaire Company (1879) 12 ChD 88, a Chancery judge entertained a petition for rehearing and the Court of Appeal (Sir George Jessell MR, Baggallay and Thesiger LJJ) held that he should have dismissed it. The case was not one of fraud nor of fresh evidence but it is noteworthy that Sir George Jessell at p 97 expressed in strong terms the view that the old jurisdiction of Chancery judges to order a rehearing was vested by the Supreme Court of Judicature Act 1873 not in the High Court but in the Court of Appeal".

Russell LJ, after referring to Flower v Lloyd, Falcke v Scottish Imperial Insurance Company, Boswell v Coaks, In re Scott and Alvarez's Contract and Charles Bright and Company Limited v Sellar , said (at 26 to 27): "In none of the cases brought to our notice has an action to set aside a judgment on the ground of fresh evidence succeeded. Indeed there is nothing to show that in the last 100 years any such action has even been brought though in Falke's Case 57 LT 39 in 1887 there was an unsuccessful attempt to bring one. Insofar as any of the dicta tend to show that an action will lie they are obiter. The reason which Sir George Jessell MR gave in In re St Nazaire Company 12 ChD 88 for the view that the jurisdiction to order a rehearing was vested by the Judicature Act in the Court of Appeal and not in the High Court is of equal weight in relation to fresh evidence as to the type of case with which he was dealing. Even if, technically, the High Court was at first clothed of this jurisdiction we are of opinion that this cause of action has long since lapsed because applications for rehearing on the ground of fresh evidence have for generations been made only to the Court of Appeal". 274 In re Barrell Enterprises has not been disturbed in England and remains the law in that country. Nothing said in Taylor v Lawrence detracts from the above quoted remarks of Russell LJ in that case. In Taylor v Lawrence the Court of Appeal was concerned only with whether it could reopen an appeal once its own judgment had been given and perfected. It did not deal with whether a single judge of the High Court had jurisdiction to entertain an action, based on fresh evidence, to set aside a judgment duly entered. The judgment of Lord Woolf CJ who gave the judgment of the Court, assumes that In re Barrell Enterprises remains the law in this respect.

The Australian cases 275 Hosking v Terry (1862) 15 Moore 493 at 504; 15 ER 581 at 585 appears to have been the last reported case in New South Wales where the bill of review procedure was recognised. 276 In Ivanhoe Gold Corporation Limited v Symonds (1906) 4 CLR 642 Higgins J (at 670) quoted with approval the remarks of Romer J in Ainsworth v Wilding (at 676 to 677) to the effect that the former power of the Court of Chancery to rehear cases after the decree had been entered had not survived the Judicature Acts. 277 In Ronald v Harper [1913] VLR 311 Cussen J, obiter, made remarks (at 318) indicative of a view that, "[u]nder the old practice" a judgment might be set aside, applying the same considerations "as formerly was the case on an application for leave to bring a bill of review". This, for the plaintiff, is the high-water mark of post-Judicature Act Australian authority.

278 In Victorian Stevedoring and General Contracting Company Pty Limited v Dignan (1931) 46 CLR 73 Dixon J (at 108-109) referred to the creation of the Court of Appeal by the Judicature Act and said: "When 'the Courts which were manifold' were united 'in divers divisions of one,' and the judgments of the one Court were made subject to the same review whether the obligations they enforced were legal or equitable, the jurisdiction and the power of the new Court of Appeal were conferred upon it in terms derived from Chancery. The provisions by which its functions were defined and described could scarcely be mistaken. The remedy they gave to the unsuccessful litigant was a rehearing of his cause of the kind illustrated by the cases since decided".

These remarks echo the views of Sir George Jessel, earlier set out. 279 As I have noted, in Gamser v The Nominal Defendant Aickin J (at 153 to 154) accepted that under the New South Wales Supreme Court Act this Court has powers to receive new evidence only during the currency of an appeal or, in respect of its inherent jurisdiction, when a judgment is sought to be impeached upon the ground of fraud.

280 In Monroe Schneider Associates (Inc) v No 1 Raberem Pty Limited the Full Court of the Federal Court (Spender, Gummow and Lee JJ) discussed (at 239-240) the equitable jurisdiction grounded on the Chancery bill of review procedure but left open the question whether the action to set aside a judgment on the ground of new matter continues to survive. 281 In DJL v The Central Authority (2000) 201 CLR 226 at 244 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said (at 244): "The Court of Chancery had power to re-open and rehear cases which had been tried before it, even after the decree had been entered. A right of rehearing in the Court of Chancery had involved the exercise of appellate rather than original jurisdiction. Sir George Jessel MR so concluded In re St Nazaire Company . However that peculiar state of affairs in Chancery did not continue with respect to the exercise of equitable jurisdiction by the Supreme Court of Judicature established by the Judicature Act 1873 (UK) . The structure it provided included the Court of Appeal."

While these remarks indicate that their Honours were in agreement with what Jessel MR had said in In re St Nazaire Company , they went on to observe (at 245) that it was "unsettled" whether the jurisdiction of Court of Chancery "might have been invoked to set aside judgments [of the superior courts of common law] by reason of the availability of 'fresh evidence'" and stated that "[t]he equity jurisdiction remains in Australia, at least with respect to the impeachment of judgments for fraud" (my emphasis).

Mr Gageler submitted that, in context, the use of the phrase "at least" indicates that their Honours were leaving open the possibility that the jurisdiction to set aside judgments on the ground fresh evidence remained. Mr Slattery accepted that what was said by the High Court in DJL v The Central Authority did not finally resolve the issue. 282 The following points can be made about the Australian authorities on the issue raised by the plaintiff. Firstly, it is highly significant that the last reported case involving the bill of review procedure was Hosking v Terry, a case heard more than 140 years ago. This seems to be a very strong indication that the jurisdiction does not exist. Secondly, the remarks made by Dixon J in Victorian Stevedoring and General Contracting Company Pty Limited v Dignan were to the effect that the Courts established by the Judicature Act acquired all the jurisdiction previously exercised by the Court of Chancery (including the bill of review procedure). The same may be said of the remarks by Higgins J in Ivanhoe Gold Corporation Limited v Symonds, Aickin J in Gamser v The Nominal Defendant and Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in DJL v The Central Authority (2000) 201 CLR 226. 283 Generally, apart from the old case of Ronald v Harper, there is no comfort for the plaintiff from the Australian authorities. They generally reflect a view that, by the Judicature Act, the jurisdiction previously exercised by the High Court of Chancery and the Court of Appeal in Chancery was transferred to the High Court and Court of Appeal established by the Act.

Original and appellate jurisdiction 284 I turn to the proposition that the bill of review procedure involved the exercise of original jurisdiction and, as the jurisdiction given to the Court of Appeal by the Judicature Act was appellate only, the Court of Appeal did not acquire the bill of review jurisdiction (which continues to be vested in a single judge of the Supreme Court of New South Wales). 285 In Mickelberg v The Queen (1989) 167 CLR 259 Mason CJ (at 271) accepted that in allowing new evidence to be led on appeal, an appellate court would be exercising original jurisdiction. Toohey and Gaudron JJ (at 298) said: "Proceedings before an appellate court involving a determination by reference to evidence called for the first time in that court are commonly referred to as appeals. However, the function which is then embarked upon is discernibly different from the ordinary appellate function of determining whether or not the court appealed from ought to have arrived at the decision in question. It involves the appellate court itself reaching a decision on material which is, to the extent of fresh evidence adduced, different from that considered by the lower court and, if that decision is different from the earlier decision, substituting that decision for the earlier decision. That function, involving the making of an independent and original decision, is properly to be characterised as the exercise of original jurisdiction". 286 In CDJ v VAJ (1998) 197 CLR 172 McHugh, Gummow and Callinan JJ at 201 to 202 said: "No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original". 287 In Eastman v The Queen (2000) 203 CLR 1 Gleeson CJ said (at 11): "Appeals are creatures of statute. It is not uncommon for intermediate appellate courts in Australia, including courts of Criminal Appeal, to have conferred upon them, by statute, power to receive an act upon evidence which was not before the court at first instance. When such a power is exercised, what is involved is an exercise of original rather than strictly appellate jurisdiction. The relevant statute ordinarily defines the conditions and limits of the exercise of the power".

See also Gaudron J at 24 to 26. McHugh J (at 33) said: "There does not appear to be any case where a court has held that the simple grant of appellate jurisdiction carries with it the right to admit further evidence in hearing the appeal. Furthermore, where a court is given jurisdiction to hear 'appeals' but with power to rehear the matter or to take new evidence, it is not exercising appellate jurisdiction in its true sense. In such cases, as Jessel MR pointed out in Quilter v Mapleson (1882) 9 QBD 672 at 675 to 676, the jurisdiction exercised by the appellate court is an amalgam of appellate and original jurisdiction. Most appellate courts today are given a statutory power to receive further evidence on appeal. In some cases, if the appeal is by way of rehearing, it may be possible to infer an implied power to receive further evidence. When such a power is conferred, expressly or inferentially, the 'appellate' court decides the case on all the facts as it finds them to exist as at the date of hearing. But the court is not exercising appellate jurisdiction in its true sense". 288 These authorities indicate that, when an appellate court allows new evidence to be led in the course of an appeal by way of rehearing, it is exercising original jurisdiction, or an amalgam of original or appellate jurisdiction, or a jurisdiction that is neither purely appellate nor purely original. Accordingly, the fact that the bill of review procedure may have involved the exercise of original jurisdiction did not preclude the transfer, by the relevant legislation, of that jurisdiction to an appellate court having jurisdiction to hear appeals by way of rehearing. 289 In any event, in DJL v Central Authority at 244 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ appear to have accepted (at 244) Jessel MR's view In re St Nazaire Company that a right of rehearing in the Court of Chancery involved the exercise of appellate rather than original jurisdiction.

290 In the circumstances, I do not accept Mr Gageler's argument that the bill of review jurisdiction was original in nature and, therefore, it was not transferred by the relevant legislation to this Court. The appellate jurisdiction to reverse a judgment on the ground of fresh evidence 291 Cases such as Orr v Holmes, McCann v Parsons and McDonald v McDonald afford the plaintiff no support. They simply illustrate the principle that, prior to the entry of its own judgment, and as part of its ordinary powers, an intermediate appellate court has jurisdiction to make orders based on fresh evidence weighed against the evidence led at the trial. Such orders may involve reversing or altering orders made at first instance.

Conclusion 292 I do not accept the arguments made on behalf of the plaintiff. 293 The Judicature Act abolished the old bill of review procedure and replaced it with appeals to the Court of Appeal. The New South Wales successors to that legislation abolished the bill of review procedure and replaced it with appeals to the Full Court (to whose jurisdiction, this Court has succeeded). 294 The continued existence of an action before a single judge of the Supreme Court of New South Wales to set aside a duly entered judgment on the grounds of fraud lends no support to the argument that there is like jurisdiction to set aside an entered judgment on the grounds of fresh evidence not amounting to fraud. 295 Even if the bill of review jurisdiction was original in nature, that does not assist the plaintiff. In any event, there is persuasive (if not binding) authority that it was in part appellate. 296 None of the other matters argued assist the plaintiff.

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