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, … ".