Procedural issues
5The first matter that the Court must consider is the effect of the earlier judgment and whether it is permissible, and/or appropriate, for the Crime Commission to re-agitate these issues.
6There is no doubt that, albeit in a slightly different context, the issue was agitated in the original submissions of the Crime Commission and in particular at [39] of those submissions. As earlier stated, the major thrust of the submissions of the Crime Commission were that the investigation into what has been referred to as the second limb was wholly invalid. That matter has been determined. Further, the Crime Commission submitted that the decision to conduct the proceedings in public was a decision vitiated by error of law and/or error of jurisdiction in that the PIC took into account irrelevant considerations. Those irrelevant considerations included the allegation as to misleading and/or deceptive conduct to which the Court has referred and the alleged misconduct relating to that which the Court described as abuse of superannuation rules. Those matters were said to be irrelevant because, it was submitted, both by the plaintiff officers and by the Crime Commission, that the allegations could not amount to misconduct. Nevertheless, as a necessary concomitant of the conclusions to which the Court has arrived, the alleged misconduct, if it were taken into account, was an irrelevant consideration, because it was outside the scope and purpose of the investigation sought to be undertaken.
7The Court, in that context, has not dealt with that issue. There are however difficulties and limits on the ability of the Court to reopen proceedings for the purpose of dealing with matters that have been the subject of orders of the Court, particularly orders of the Court already entered. Pursuant to the provisions of the Uniform Civil Procedure Rules 2005 (hereinafter "the Rules"), r 36.11(2), a judgment or order of the Court is taken to be entered, unless the Court orders otherwise, when it is recorded in the Court's computerised court record system. By r 36.16(3A), the Court may determine the matter and, if appropriate, set aside or vary a judgment as if the judgment had not been entered, if a notice of motion for the setting aside or variation of a judgment or order were filed within 14 days after that judgment or order. As is obvious from the date of this judgment and the proceedings giving rise to it, within 24 hours of the issue of the earlier judgment the Crime Commission sought to agitate the issues with which the Court is now dealing. As a consequence, the Court waived compliance, pursuant to the terms of s 14 of the Civil Procedure Act 2005, with the rules insofar as it was necessary to file a notice of motion and treated the communication with the Court (and the defendant PIC) as a notice of motion for the purposes of r 36.16(3A).
8But for the qualification in r 36.11 "unless the court orders otherwise", there would be some question as to the efficaciousness of r 36.16(3A). Generally, a Court, even a superior court of record, has serious limitations on its capacity to recall a judgment that has finally determined a proceeding before the Court: Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530 per Barwick CJ. Generally the capacity of the Court to reopen a judgment once entered is confined to the "slip" rule; the power to amend where the intention of the Court has not manifested in the judgment; and the capacity to allow the opening of orders made in chambers.
9The Rules must be read as a whole and should, to the extent possible, be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381-382, [70], per McHugh, Gummow, Kirby and Hayne JJ. To the extent that conflict appears to arise from the language, it should be alleviated, as far as possible, by adjusting the meaning of the competing provisions; Project Blue Sky , supra.
10The Rules should be read in that way and r 36.11 should be read, to the extent possible, in a way that achieves harmonious goals with that contained in r 36.16(3A). In those circumstances at the very least, if a motion (or, in this case, communication which the Court has ordered will suffice) has been lodged with the Court within 14 days, then, pursuant to r 36.11(2), the Court is capable of otherwise so ordering and the order has effect nunc pro tunc. The Court has, in the course of the proceedings on 20 May 2011, ordered and/or declared that the judgment or order, herein referred to as the earlier judgment, has not been entered, in which case the Court has ordered otherwise, pursuant to r 36.11(2).
11Notwithstanding that the orders in the earlier judgment have, pursuant to the aforementioned order, not been entered, there are still limitations on that which the Court is entitled to do in recalling and reopening the matters it has already decided. The limits on reopening and reviewing an order and/or reasons for judgment, previously issued, were dealt with by the High Court in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300. In that case, Chief Justice Mason made it clear that the public interest in the finality of litigation does not preclude the exceptional step of reviewing or rehearing an issue if a court were to have good reason so to do.
12Informing that discretion, apart from common law criteria, it seems to me, are the provisions of s 56 and following of the Civil Procedure Act and the jurisdiction or power conferred by s 63 of the Supreme Court Act 1970.
13On one view of the issue raised, it is an issue raised, and a cause of action, agitated in the initial proceedings. On another view, it is a nuance on that which was originally agitated by the plaintiffs in the original proceedings and directly arises from the conclusion reached by the Court that the two allegations of misconduct, to which reference has been made, were outside of the scope and purpose announced by the PIC.
14In that respect, the matter had not been argued. The Crime Commission had argued, as earlier stated, that the PIC had considered irrelevant matters, because the two allegations of misconduct could not amount to misconduct. Due to the conclusions of the Court, even if the two allegations could amount to misconduct (and it seems that one, at least, would) they are not matters that would be misconduct within the scope and purpose of the investigation announced.
15Nice questions arise as to whether, in those circumstances, the Court, if it were not minded to allow the re-agitation of the issues, would be faced, or could be faced, with further applications and/or an appeal confined to an issue that ought properly to be dealt with in these proceedings. Further, the Court is empowered to issue orders so as to grant all remedies so that all matters in controversy between the parties can be completely and finally determined: see Edwards v Santos Ltd [2011] HCA 8. Exercise of the power in s 63 of the Supreme Court Act is consistent with the purposes of ss 56, 57 and 58 of the Civil Procedure Act .
16In the foregoing circumstances, it seems appropriate to allow for the reopening of the issues to agitate the matters arising from the conclusion reached. Quite properly, counsel have submitted that the arguments previously put, with the necessary changes, should be reconsidered in light of the findings of the Court as to the limits on the scope and purpose of the investigation announced. I turn then to consider the arguments in light of those issues.
17Further, the original intent of the Court in issuing order (ii) on 17 May 2011 was to grant the parties liberty in relation to any matter arising from the reasons for the earlier judgment. This is such a matter.