By orders which were made and perfected on 7 October 2025, this court dismissed this appeal so far as it related to the refusal of the primary judge to make orders against the fourth respondent and the seventh respondent. That order had been sought in an application in an appeal filed by the fourth respondent on 3 September 2025, following the appellant's failure to comply with an order requiring payment of money into court as security for the fourth respondent's and seventh respondent's costs of the appeal. The order was made after the court ordered the fourth respondent's application, and an associated application by the appellant seeking to set aside the order for payment of security for costs, to be determined on the papers. The appellant was given a reasonable opportunity to make written submissions in relation to the applications before the orders were made.
Also on 7 October 2025, the court published written reasons for dismissing the appellant's application and for making the order dismissing the appeal so far as it related to the refusal of the primary judge to make orders against the fourth respondent and the seventh respondent.[1] In those reasons, the court expressed the view that the ground of appeal against the refusal of the primary judge to make orders against the fourth respondent and the seventh respondent was entirely without merit. The court also expressed the view that there was no reasonable prospect that the appellant would comply with the security for costs order in the foreseeable future, and that there was no point in deferring the inevitable. The court dismissed the appeal so far as it related to the refusal of the primary judge to make orders against the fourth respondent and the seventh respondent. That order was made under r 43(2)(g)(ii) read with r 5A(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules), on the ground that the appellant had not complied with the order requiring payment of security for costs made under the Rules.
On 4 November 2025, the appellant lodged an application in an appeal which sought to set aside the orders made on 7 October 2025 and substitute an order dismissing the fourth respondent's application in an appeal filed on 3 September 2025. Alternatively, the appellant's application in an appeal sought orders that it be treated as an appeal notice commencing a second appeal from the primary orders.
The Court of Appeal registrar refused to accept the application for filing on the ground that the court's decision could not be reviewed and re‑examined and neither can the court reopen and consider its perfected orders. The appellant now seeks a review of the registrar's decision not to accept his application lodged on 4 November 2025 for filing.
The Court of Appeal registrar's decision to refuse to accept the application lodged on 4 November 2025 for filing was correct. The perfection of the orders made on 7 October 2025, in a manner that accurately reflected the orders the court intended to pronounce, disposed of the appeal so far as it related to the refusal of the primary judge to make orders against the fourth respondent and the seventh respondent. It marked the end of the litigation of the appeal from the refusal to make orders against the fourth respondent and seventh respondent in this court and provided conclusive certainty about the end result of the appeal from those orders in this court.[2]
In Amaca Pty Ltd v Hannell [No 2],[3] this court affirmed that in the absence of a statutory provision to the contrary and subject to certain narrow exceptions, a formally recorded order made by an intermediate appellate court after a hearing on the merits cannot be reopened or reconsidered. The court held that it has no general statutory power, express or implied, to reopen and reconsider perfected orders, civil or criminal.
The appellant seeks to distinguish Amaca on three bases. First, he contends that the appeal is still on foot against the orders affecting the other respondents and was not finally resolved by the orders made on 7 October 2025. Secondly, he contends that there was a failure to accord him procedural fairness in making the orders of 7 October 2025, which he says is one of the narrow exceptions to the general rule recognised in Amaca. Thirdly, he says that there has been no determination on the merits of the appeal against the refusal of the primary judge to make orders against the fourth respondent and the seventh respondent.
There is no merit to the appellant's first contention. While the appeal from other primary orders remains on foot, the decision of 7 October 2025 brought the appeal from the refusal of the primary judge to make orders against the fourth respondent and the seventh respondent to a final conclusion. Unless set aside, the order dismissing the appeal to that extent finally resolves the dispute in this court as to the rights, duties and liabilities of the fourth respondent and seventh respondent. It is a final, not an interlocutory, order.
The High Court in Burrell did not find it necessary to deal with the question of whether some forms of denial of procedural fairness could warrant grafting some exception on the general rule that an intermediate appellate court has no power to reopen an appeal which has been determined on its merits.[4] Nor is it necessary to examine that question in the present case. The appellant's affidavit of 4 November 2025 lodged in support of the application of 4 November 2025 asserts a denial of procedural fairness but in substance complains about the merits of the court's earlier reasoning. While he complains that various conclusions in the court's reasons as to the merits of his ground of appeal were not put to him by the court or the respondents, this court merely concluded that the appellant's ground of appeal provided no reason to doubt the correctness of the primary judge's decision. The appellant had the opportunity to address the merits of his ground of appeal in writing in his appellant's case and in supplementary written submissions which he was given an opportunity to file. The fact that the appellant did not take advantage of the opportunity to file supplementary submissions, because he lodged a document that was not accepted for filing as it exceeded the page limit imposed by this court's orders, does not mean that he was denied a reasonable opportunity to present his case. There was no arguable failure to accord procedural fairness to the appellant in making the orders of 7 October 2025.
The appellant's third contention is that the appeal was not dismissed after a hearing on the merits, so that the ordinary rule against the court reopening its orders does not apply. It is unnecessary to explore the merits of that contention. The appellant's affidavit in support of his proposed application does not disclose any arguable material change in circumstances since the orders were made on 7 October 2025. Paragraph 3 of the affidavit states that the appellant remains unable to provide security for costs. The appellant's challenge seems to be to the order requiring payment of security for costs. That issue has been considered by this court on two occasions: when the order requiring security for costs was made on 13 June 2025 and when the appellant's application to set aside the security for costs order was refused on 7 October 2025. Even if this court did have power to reopen the issue, the appellant's repeated attempts to relitigate that issue in the absence of any material change in circumstances constitutes an abuse of the process of the court.[5]
There is also no merit in the appellant's invitation to treat his document as an appeal notice commencing a second appeal against the primary judge's orders. It is established that s 58 of the Supreme Court Act 1935 (WA) creates a single right of appeal which, once exercised by the filing of an appeal notice, cannot be exercised a second time.[6] The appellant, having exercised his right of appeal against the primary orders, cannot institute a second appeal from the same orders.
Rule 10A of the Rules provides that a registrar must not accept for filing any document that appears to the registrar to be an abuse of process, or frivolous or vexatious, unless the party seeking to file the document first obtains the leave of a judge. In substance, the Court of Appeal registrar refused to accept the appellant's application in an appeal because it was frivolous and an abuse of process. The registrar was correct to do so.
In the present circumstances, if the appellant is dissatisfied with the orders made by this court on 7 October 2025, his only avenue of recourse is to seek special leave to appeal against those orders from the High Court of Australia. The appellant's current review application must be dismissed.
[2]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.