Apparently, Smart J was of the view that as an order having final effect had been made by the Deputy Registrar, he had no jurisdiction to deal with the matter.
12 In December 1999, by notices of motion, the opponents applied for a series of orders including orders reviewing and setting aside the self-executing orders of Master Greenwood made on 28 February 1996, alternatively extending time for compliance therewith.
13 The opponents' applications came before Bell J. Mr Fitzsimmons, who again appeared on the claimant's behalf, submitted that, as the orders made by Deputy Registrar Haggett had been duly entered as final orders of the Court, her Honour did not have jurisdiction to entertain the orders sought in the notices of motion. He relied on the rule expressed as follows by Barwick CJ in Bailey v Marinoff (1975) 125 CLR 529 (at 530) (and approved by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in DJL v Central Authority (2000) 74 ALJR 706):
"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at end in that court and is in substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed".
14 Mr Santisi, who appeared for the opponents, submitted on the other hand that the rule expressed in Bailey did not apply to an order made by a registrar (a registrar being an officer of the court and not a judicial officer). He argued that Pt 2 r 3 of the Supreme Court Rules 1970 afforded Bell J jurisdiction to make the orders sought.
15 The parties agreed that her Honour should rule on the jurisdictional issue before hearing the evidence upon which the opponents proposed to rely in support of their motions.
16 Bell J upheld the submissions of the opponents and pointed out that the orders made on 28 October 1996 by Deputy Registrar Haggett were not orders of a judge or master. She said:
"The terms of the orders made on 28 October 1996 embody an assertion of the Court's satisfaction that in each case the plaintiff [opponent] had failed to comply with the Master's orders of 28 February 1996. That satisfaction is not that of the Master nor of a Judge. I do not consider that the principles referred to in DJL governing the finality of perfected orders made by a superior court of record after trial have application in the present case".
17 Relying on FAI General Insurance Company Limited v Southern Cross Exploration NL, her Honour concluded that she had power to extend the time fixed by the Master's order of 28 February 1996 and held:
"I have jurisdiction to entertain the Motions filed in each of the proceedings".
18 The claimant applied for leave to appeal against Bell J's decision and the parties agreed that the appeal, in each case, should be heard at the same time.
19 Mr McAlary QC who, together with Mr Fitzsimmons, appeared for the claimant, initially submitted that the Deputy Registrar was empowered to make the orders of 28 October 1996 by Pt 61 r 1 of the Supreme Court Rules, read with Schedule E thereto. He was, however, unable to refer to a specific power in Schedule E which conferred the requisite authority and conceded that the Deputy Registrar did not have power to make the orders. He then relied on s 121 of the Supreme Court Act 1970. This section, in my view, is conclusive of the appeal. In fairness to Bell J, I would note that no mention of it was made in argument before her.
20 Section 121 of the Supreme Court Act provides:
"121 (1) In this section 'officer' means a registrar, taxing officer, or other officer of the Court.
(2) An officer may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the officer.
(3) A judgment given or an order made by an officer may be set aside or varied by the Court.
(4) Subject to subsection (3), a judgment given or an order made or direction given by an officer shall have effect as a judgment or order or direction of the Court, whether or not the judgment, order or direction is within the powers mentioned in this section of the officer.
(5) An officer shall constitute the Court for the purpose of the exercise of the powers mentioned in subsection (2).
21 The effect of s 121 (and, in particular, s 121(4) read with s 121(3)) is that an order made by a registrar shall have effect as an order of the Court, whether or not the order is within the powers of the Registrar, until the order is set aside.
22 It follows, therefore, that the orders of 28 October 1996 made by Deputy Registrar Haggett remain of effect until set aside. Until then they are final orders and therefore attract the rule in Bailey v Marinoff and DJL. At the stage that the matters were before Bell J, the opponents had not applied to set them aside.
23 Accordingly, as the proceedings commenced by the opponents stood dismissed by the orders made on 28 October 1996 by Deputy Registrar Haggett, Bell J had no jurisdiction to set aside the orders of Master Greenwood of 28 February 1996 or to extend time to the opponents to provide the particulars required by that order. It would have been open to her Honour to set aside the Deputy Registrar's order pursuant to s 121(3) and then to proceed to review the Master's orders of 28 February 1996. But, as I have mentioned, the opponents did not make the necessary application to her Honour.
24 At the conclusion of argument on appeal, this Court granted leave to the opponents to amend the notices of motion before Bell J so as to seek (in addition to the orders already claimed thereby) orders extending time to apply to set aside the Deputy Registrar's order of 26 October 1996 and setting aside that order. The opponents have given notice that that amendment has been made.
25 In the circumstances, I would grant the applications for leave to appeal, uphold the appeals, remit the matters to Bell J for determination according to law and order the opponents to pay the claimant's costs of the appeal. The opponents to have a certificate under the Suitors' Fund Act. No order as to costs was made by Bell J and I would make no order as to the costs of the proceedings before her Honour.
26 When the matter returns to Bell J, her Honour will be seized with the issue whether or not the orders made by the Deputy Registrar on 28 October 1996 should be set aside. It will be for her Honour to make whatever orders are necessary for the giving of any additional evidence in that connection. Should the opponents succeed in having the orders of 28 October 1996 set aside, it will be open to them to continue with their applications to set aside the orders made by the Master on 28 February 1996 or to seek orders extending the time for the provision of the particulars specified by the Master.
27 FITZGERALD AJA: I agree with Ipp AJA.
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