[2000] HCA 17
Kendell v Carnegie (2006) 68 NSWLR 139
[2006] NSWCA 302
Majak v Rose (No 5) [2017] NSWCA 238
Newmont Yandal Operations Pty Ltd v J Aron Corporation (2007) 70 NSWLR 411
Source
Original judgment source is linked above.
Catchwords
[2000] HCA 17
Kendell v Carnegie (2006) 68 NSWLR 139[2006] NSWCA 302
Majak v Rose (No 5) [2017] NSWCA 238
Newmont Yandal Operations Pty Ltd v J Aron Corporation (2007) 70 NSWLR 411
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: On 24 December 2020, this Court dismissed the applicant's summons seeking leave to appeal from orders dismissing his summons seeking declaratory and other relief concerning the appropriate method by which to fill a casual vacancy in The Greens NSW's list of nominees for the 2019 Legislative Council election and requiring the applicant and his co-plaintiff to pay the costs of the first, fourth and fifth defendants: Johnston v The Greens NSW [2020] NSWCA 357 (JA). On 7 January 2021, the applicant filed a notice of motion seeking to have the orders of 24 December 2020 set aside, the reasons re-opened, and new orders made, including an order that leave to appeal be granted. On 22 March 2021, directions were made for the filing and service of written submissions. The times for compliance with those directions were extended on 7 May 2021 and again on 7 June 2021. The Court has now received the written submissions of the applicant dated 4 June 2021, and the fourth and fifth respondents dated 15 June 2021.
Notwithstanding the applicant's request for an oral hearing, the Court is firmly of the view that this application can and should now be determined on the papers, which in the applicant's case consists of a further 23 pages of submissions.
Subject to very limited qualifications, even a common law court (as distinct from a court of statutory jurisdiction) lacks inherent power to set aside or vary a judgment that has been pronounced and entered: see DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 at [34]-[38]. Once final orders have been entered on the record of the court, the proceeding is "at an end in that court and is in its substance… beyond recall": Bailey v Marinoff (1971) 125 CLR 529 at 530. Save insofar as they are reflected in the specific statutory exceptions contained in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), none of the other qualifications to that rule is of present relevance.
The applicant's notice of motion cites UCPR rr 36.15, 36.16 and 36.17 and Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 301-303, 308. His written submissions do not address the application of any of those rules. As will be seen, none is available, and no other basis for this Court setting aside its orders is apparent. Rule 36.16, which raises the most substantial issues, is dealt with last.
Rule 36.15(1) provides that the court may, "on sufficient cause being shown", set aside an order made "irregularly, illegally or against good faith". The applicant contends that the reasons of this Court are wrong in various respects. He has not, however, identified any irregularity in the orders themselves, as distinct from the substantive reasons for which they were made. Nor has he identified any conduct of the respondents, relevant to the circumstances in which judgment was given, which might be described as "against good faith": see Coles v Burke (1987) 10 NSWLR 429 at 437; Kendell v Carnegie (2006) 68 NSWLR 139; [2006] NSWCA 302 at [52]-[60]. Even if the allegations made against the fourth and fifth respondent concerning their conduct at first instance were otherwise capable of satisfying r 36.15(1), they are not supported by the evidence (see JA [27]-[29]). The respondents do not consent to an order setting aside the orders of 24 December 2020: cf r 36.15(2).
Rule 36.17 (the "slip rule") applies where "there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order". The slip rule may overlap with the Court's inherent power to correct an earlier order so as to truly represent "what the court had pronounced or had intended to pronounce" (DJL v Central Authority at [34]), but that inherent power is not, and could not be, separately relied on. The phrase "accidental slip or omission" is not entirely free from difficulty (see Newmont Yandal Operations Pty Ltd v J Aron Corporation (2007) 70 NSWLR 411; [2007] NSWCA 195 at [111]ff per Spigelman CJ), but on any view it does not extend to mistaken or allegedly mistaken conclusions reached deliberately in resolving issues that were the subject of argument. None of the alleged mistakes are "clerical".
Finally, although Mason CJ's statement of principles in Autodesk v Dyason (No 2) has come to guide the application of r 36.16, the decision itself concerned the inherent power to reopen a judgment that had been pronounced but not entered (now reflected in UCPR, r 36.16(1)). That is not this case, because final orders were entered on 24 December 2020. Sub-rule (3A) extends r 36.16(1) by providing that where a notice of motion is filed within 14 days of the entry of judgment, the court may set aside or vary the judgment or order "as if the judgment or order had not been entered". As the applicant's notice of motion was filed within 14 days of the entry of orders, the question is whether there is a proper basis on which to do so.
The relevant principles are well-understood. The power conferred by r 36.16 is to be exercised "sparingly and with caution" and "does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them": Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[13] (Leeming and Simpson JJA, Emmett AJA). The purpose of the power is "to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal": Majak v Rose at [12]; Owlstara v State of New South Wales (No 2) [2020] NSWCA 335 at [5]. "Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard": Autodesk v Dyason (No 2) at 302 (Mason CJ). However, as Mason CJ went on to explain (at 303), it may also be exercised where "the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and ... this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing".
The applicant made oral submissions for much longer than is usually permitted on a leave application. None of the issues addressed by this Court - whether there would be any utility in a grant of leave; whether there was any sufficiently arguable error in the primary judgment to justify a grant of leave; and whether there was any error in the costs judgment that was more than merely arguable - was dealt with on a basis that the parties did not have the opportunity to address. The dispositive question with respect to the applicant's reliance on r 36.16 is accordingly whether this Court's judgment was based some material "misapprehension" of fact or law. The answer is that it was not. The question raised by r 36.16 is emphatically not whether the Court's disposition of the issues was incorrect or whether the applicant has now managed to put his arguments better or more fully. As Mason CJ also said in Autodesk v Dyason (No 2) at 303: "The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases."
The applicant's submissions identify only two potential misapprehensions of fact or law. The first relates to whether prayers 9 and 10 of the further amended summons filed on 1 March 2019 were pressed in the event that the principal question of construction, the subject of prayer 12, was decided adversely to the applicant. We rejected an argument that there would be any utility in the separate determination of the issues raised by prayers 9 and 10 on the basis that the applicant's counsel had accepted before the primary judge that "if you lose 12 you abandon 9 and 10" (JA [9]-[11]). The applicant now submits that the conditional abandonment of prayers 9 and 10 was qualified by the further amendment of the summons, which took place subsequently. The difficulty with this submission is that although the summons was formally amended only after the exchange between Robb J and counsel for the applicant set out at JA [10], the transcript of argument demonstrates clearly that the exchange related to prayers 9 and 10 in their further amended form.
The second alleged misapprehension relates to the question whether there was any sufficiently arguable error in the primary judge's disposition of the principal issue of construction, namely the manner in which the constitution of The Greens NSW requires a casual vacancy in its list of Legislative Council nominees to be filled. The applicant's argument depended in part on cl 11.1(b) of the constitution, which provides:
All valid votes are then counted by a proportional representation (PR) method (similar to the method of counting used in Senate elections) to elect the number of members required on the ticket.
This Court's reasons instead set out cl 9.8 of the preselection rules, and incorrectly described that clause as part of the constitution (JA [18]). However, but for an explanation of how the number of members required on the ticket is to be determined ("which will be pre-determined by the SDC"), cl 9.8 of the preselection rules is in precisely the same terms as the relevant part of cl 11.1(b) of the constitution. Any "misapprehension" was immaterial.
The applicant has not identified any basis on which this Court could or should exercise any power to set aside its orders and reopen its reasons. The notice of motion is dismissed with costs.
[3]
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Decision last updated: 30 November 2021