Whether O 37 r 6 permits variation
3 In the first instance the motion to amend the final orders was supported by reference to O 37 r 6 of the FCR. Relevantly, that rule provides:
"(1) A person bound by a judgment may move the court for a stay of execution of the judgment, or for some other order, on the ground of matters occurring after the date on which the judgment takes effect and the court may make such order as the nature of the case requires."
4 The principal authority on O 37 r 6 and rules in similar form is the decision of the High Court in Gamser v Nominal Defendant (1977) 136 CLR 147. There the plaintiff had, at first instance, been awarded $160,000.00 for damages for negligence causing personal injury. The defendant appealed from that judgment and was successful, the New South Wales Court of Appeal reducing the award to $125,000.00. After the decision of the Court of Appeal the plaintiff applied for an order that its judgment be set-aside on the ground that events occurring since judgment had caused his condition to deteriorate. In making the application the plaintiff relied inter alia on Pt 42, r 12 of the Supreme Court Rules 1970 (NSW) which was in identical terms to FCR O 37 r 6.
5 The Court of Appeal refused the application: Gamser v Nominal Defendant [1976] 1 NSWLR 520. Glass JA (with whom Moffitt P and Hutley JA agreed) held there were two reasons why the rule, upon its proper construction, failed to allow the order which the plaintiff sought. He said at 522:
"In the first place, the phrase "a person bound by a judgment", having regard to the appearance of similar phraseology in other rules in Part 42, headed "Judgments and Orders: Enforcement", and, in particular, having regard to the contrast it affords with the phrase "a person entitled under a judgment" contained in Rule 11, would include the defendant in this case, but not the plaintiff."
The second reason given by Glass JA was:
"The phrase "some other order", having regard to the general character of Part 42, would not, in my opinion, include, upon its proper construction, an order setting aside a judgment regularly entered."
6 The plaintiff appealed to the High Court. His appeal was dismissed. Aickin J (with whom the other members of the Court agreed) agreed with Glass JA that Pt 42, r 12 did not confer power on the Court to make the orders sought by the plaintiff. Aickin J found it unnecessary to decide whether the plaintiff was "a person bound by a judgment": Gamser v The Nominal Defendant (1976) 136 CLR 145. Aickin J said (at 153):
"Whether or not the appellant is a person bound by a judgment within the meaning of that Rule, the context makes it clear that the kinds of order contemplated do not include one setting aside a judgment regularly entered."
In agreeing with the reasons of Aickin J, Gibbs J said:
"I regard it as unfortunate that the inherent power of an appellate court does not extend to varying its own orders when the interests of justice require it. It is of course a most important principle, based on sound grounds of policy, that there should be finality in litigation. However, exceptional cases may arise in which it clearly appears from further evidence that has become available that a judgment which is being given rested on assumptions that were false and that it would be manifestly unjust if the judgment were allowed to stand. In my opinion it is desirable that the Court of Appeal should have a discretion - however guardedly it might have to be exercised - to reopen its judgments in cases such as that in which the needs of justice require it. I agree, however, that the decision in Bailey v Marinoff shows that the Court of Appeal lacks that inherent power."
7 In Bailey v Marinoff (1971) 125 CLR 529 it was held by a majority of the High Court (Barwick CJ, Menzies, Owen and Walsh JJ, Gibbs J dissenting) that there was no inherent power in a court to deal further with an appeal which has already been dismissed by formal order, in conformity with an order pronounced, where the order was entered before an application to vary it was made. Here, of course, the issue is not one of inherent power but of the scope of O 37 r 6.
8 I accept the submission for the applicants that they clearly satisfy the description of persons bound by the judgment, even in the narrow sense outlined by Glass JA which was left open by Aickin J in the High Court.
9 The "other order" which the applicants seek to move the Court to make is the imposition of a penalty on the GPA. This is exactly the same order as the applicants sought in their submissions dated 26 July 1999 and in later "Submissions of the Applicants in Reply to those of the First Respondent Regarding Relief", pars 21 - 24. It is apparent that if the Court made orders as moved on behalf of the applicants it could only do so by setting aside portion of the orders made on 10 February 2000. For the GPA it is therefore submitted that this Court being bound by the decision of the High Court in Gamser, it cannot take that step because to do so would be to set aside a judgment which has been regularly entered. Consequently it is said the applicants cannot invoke the aid of O 37 r 6.
10 For the applicants it is sought to distinguish Gamser from other authorities addressing the effect of rules in similar terms to O 37 r 6. There are three such authorities relied on.
11 The first, in date order, is Permewan Wright Consolidated Pty Ltd v Attorney General; Ex rel Franklins Stores Pty Ltd (1994) 35 NSWLR 365, decided on 11 December 1978. The case considered Pt 42, r 12 of the Supreme Court Rules 1970 (NSW). A motion sought the dissolution, variation or staying of an order of the Court of Appeal. The order in question was an injunction relating to the use by the applicant company of certain land. The Court held that it had power pursuant to the rule to stay or suspend the operation of its injunctive order on the ground of matters occurring after its date. Reynolds JA at 367 said such stay or suspension was analogous to staying the execution of a judgment. He accepted that the ratio of Gamser was that neither the power in the rule nor the inherent power of the Court extended so far as to allow the changing or dissolution of an order regularly made and entered (at 367). There was therefore a distinction drawn between the changing or dissolution of an order, which was regarded within the ratio of Gamser, and the staying or suspending of the operation of an order. The particular circumstances which arose in Permewan were that because of a change in the applicable planning law the injunction was no longer warranted. Hutley JA approached the matter in a different way and did not decide the point. Mahoney JA considered that the Court had power, by an appropriate order, to ensure that its order does not operate after the statutory basis upon which it was made ceases to exist. He was inclined to the view that apart from the rules, the Court must have power in any event (at 374).
12 The second authority is Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 Kirby P at 335, in considering whether the Court had jurisdiction to hear and determine an application to discharge or otherwise vary injunctive relief previously granted, referred to Pt 42 r 12(1) of the Supreme Court Rules 1970 (NSW) and the statement by Mahoney JA in Permewan. He said (at 336):
"Although Permewan Wright concerned an appeal from the Equity Division of the Supreme Court, the suggestions put forward by Mahoney JA that the rule, and indeed the inherent jurisdiction of the Court, provide powers to vary orders after the conclusion of the hearing seems applicable to circumstances where an injunction is no longer warranted because of a change in the applicable planning law, as in the circumstances of this case."
13 The third authority is QDSV Holdings Pty Ltd v Trade Practices Commission (1995) 59 FCR 301. Sackville J at 315 said:
"Moreover, the Court has jurisdiction to dissolve a permanent injunction in circumstances where legislation has removed the foundation for the grant of the injunction: Commonwealth Scientific and Industrial Research Organisation v Perry at 558; Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 at 335 - 336, per Kirby P. Additionally, O 37 r 6 of the Federal Court Rules 1979 (Cth) makes specific provision for a party bound by a judgment to move the Court for orders on the ground of matters occurring after the date of the judgment. This provision gives the Court jurisdiction to vary or dissolve a permanent injunction: Coffs Harbour at 335, per Kirby P. Thus, if the Bill were ultimately passed by the Parliament in its present form, and if it were thought to authorise conduct by the appellant which is restrained by the Court's order, it would be open to the appellant to apply to the Court to dissolve or modify the order."
14 For the applicants it is submitted that the present circumstances are no different in principle from the continuance of injunctions in circumstances where the legal foundation for them may have changed. The basis of that submission is that there has been, here, a change in circumstances which has rendered nugatory those considerations which led the Court not to impose a penalty. In my opinion this submission cannot be accepted on the basis of the authorities referred to.
15 I accept the submission for the GPA that the decisions in the cases since Gamser are authority for the proposition only that a rule in the form of O 37 r 6 gives the Court power, on application by a party upon whom an injunction imposes obligations, to ensure that an injunction does not continue to operate where the statutory basis for its operation has ceased to exist. The decisions in Permewan, Coffs Harbour and QDSV do not support an argument that O 37 r 6 empowers a court to set aside a judgment regularly entered. That was made explicit by Reynolds JA in the passage previously referred to in Permewan at p 367. Accordingly, I consider that it is not possible to distinguish the application of Gamser from the present application and that Gamser is a barrier to the Court making the "other order" as is sought for the applicants provided the judgment was "regularly entered".
16 However, examination of the file in this proceeding discloses that the final orders have not in fact been entered. The entry of judgments and orders is the subject of O 36 of the FCR. The final orders were of a type which required entry pursuant O 36 r 8(2). For the purposes of the application of the ratio in Gamser, the non-compliance with that rule has the consequence that the final orders were not "regularly entered". The result is that Gamser is not an obstacle to the application of that rule.
17 It is however, strictly unnecessary to further consider reliance on O 37 r 6 because the effect of the judgment not having been entered is that the provisions of another rule are more relevant.