Mijac Investments Pty Ltd (ACN 084 820 280) v Graham

REASONS FOR JUDGMENT 1 These reasons for judgment should be read together with those published today in Mijac v Graham [2010] FCA 895. In that judgment the Court refused to extend the time for the filing and serving of a notice of appeal from a judgment of a single judge of the Court ("the primary judgment"). In addition to that application Mijac has also applied to set aside the orders of Gray J of 20 January 2010, in which his Honour dismissed an appeal from the primary judgment for Mijac's failure to comply with orders of this Court. 2 Justice Gray's order of 20 January 2010 had not been entered when this matter was filed on 10 August 2010, the order was then entered on 11 August 2010. Mijac applies to set the order aside under O 35 r 7(1) of the rules of Court which provides: The Court may vary or set aside a judgment or order before it has been entered. 3 The fact that the order has now been entered does not deprive the Court from dealing with the Motion as the filing of the Motion preceded the entry of the order; see Yevad Products Pty Ltd v Brookfield (2005) 147 FCR 282at [32]. 4 As Brennan, Dawson, Toohey and Gaudron JJ said in Smith v NSW Bar Association (1992) 176 CLR 256 at 265, concerning the power to set aside an order which is not entered: The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal. 5 Further as French and Kiefel JJ said in Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) (2007) 239 ALR 724 at [6]: The discretion under O 35 r 7(1) to vary or set aside a judgment before it has been entered is to be exercised sparingly. The public interest in the finality of litigation requires no less. A liberal approach would open the way to disappointed litigants to seek to reargue cases generally on the basis that the Court failed to properly consider their submissions on the law or the facts. On the other hand, where a court has adopted a proposition of fact or law which the unsuccessful party has not had a reasonable opportunity to argue there may be a denial of procedural fairness if that party is not allowed to reopen argument for the purpose of meeting the adverse proposition. 6 Mijac is a disappointed litigant which wishes to re-argue a case which it lost before Gray J because it contends, in essence that, his Honour failed to properly consider its submissions. It also says that an explanation has now been given by Mr Jorgenson for failure to comply with orders of the Court, by reference to changing solicitors and difficulties faced in accessing documents. Mijac also takes issue with Gray J's judgment by reference to Victorian Court of Appeal authority in which longer delays and worse non-compliance than occurred in the present case did not shut out an appellant from pursuing an appeal. Those cases preceded the judgment of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, where the High Court stressed the importance of proper case management as being not only in the interest of the parties but in the public interest. See per French CJ at [27] and per Gummow, Hayne, Crennan, Kiefel and Bell JJ at [89] to [103]. 7 Moreover, s 37M (1) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"), provides: (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. 8 These provisions must be interpreted and applied to civil practice and procedure in this Court, and any power conferred or duty imposed by these provisions must also be taken into account in a way that best promotes the overarching purpose of civil practice and procedure. This includes among other things; justice between the parties and the efficient use of the judicial and administrative resources of the Court. Section 37 M of the Federal Court Act, is therefore a legislative recognition of the principles that have arisen from the case of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. 9 The contentions advanced by Mijac in this application are raised by a disappointed litigant in the context of grievances with the judgment sought to be set aside. There is no suggestion, nor could one be validly made, that Mijac did not have a reasonable opportunity to advance submissions before Gray J. Indeed no issue of an alleged denial of procedural fairness by his Honour has been raised by it. Mijac contends that it was not the subject of a final chance, self-executing order. I see no reason why, especially having regard to Aon and s37M of the Federal Court Act, that fact should have made any difference to the exercise of Gray J's discretion. 10 Mijac could have requested his Honour, Gray J to set aside his order and it has not. Finality of litigation and the desirability of efficient conduct of litigation, leads the Court to consider that Mijac's application to seek to set aside the order and judgment of Gray J must be dismissed. Mijac should pay the respondent's costs of this motion. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.