Ove Arup and Ors v Inspector Mansell

Ove Arup and Ors v Inspector Mansell - [2005] NSWIRComm 49 - NSWIRComm 2005 case summary — Zoe

[35]

18 In Reardon the Court of Criminal Appeal considered it was bound by Grierson. At [40]-[41] Hodgson JA (with whom Simpson and Barr JJ agreed) stated: 40 The authorities make it clear that, if an application to re-open an appeal is made before the judgment dealing with the appeal has been perfected, the Court has jurisdiction to re-open its consideration of the appeal, and that denial of procedural fairness will be a ground on which the Court may take that course. However, the situation is not so clear where the application to re-open is made after the order of the Court has been perfected. Grierson is direct authority to the effect that the Court of Criminal Appeal has no jurisdiction to re-open an appeal once it has heard and determined the appeal and the order has been perfected. Jones suggests that this principle might not apply if a purported determination of an appeal in fact does not amount to a determination of the appeal because there has been a total failure to determine some of the grounds of the appeal. Pantorno and Postiglioni suggests the possibility that there might be jurisdiction to re-open an appeal where procedural fairness has been denied. In the Court of Criminal Appeal, Lapa suggests that there is no jurisdiction to re-open an appeal once the order is perfected, even where there is a denial of procedural fairness; but it could be said that that view is expressed obiter. The contrary view is expressed in Saxon and Gust , but again it could be said that the view is expressed obiter. 41 In my opinion, what was said in Jones , Pantorno and Postiglioni is insufficient to displace the binding authority of Grierson to the effect, once an appeal has been heard and determined and the order perfected, there is no jurisdiction to re-open the appeal. This is subject to the slip rule, and the possibility of separate proceedings to set aside orders obtained by fraud. However, it is to be noted that this principle applies when an appeal has been heard and determined; and leaves open the possibility that if there are grounds of appeal which are not determined at all, it could be said that the appeal has not been determined. That is a possibility adverted to by Sperling J in Saxon ; but in my opinion, it is not any denial of procedural fairness which would have the result that it could be said that an appeal has not been heard and determined. In my opinion, it is only if there is some ground of appeal which was argued but not determined by the Court that one might be able to say that a purported determination does not, in relation to that ground of appeal, amount to a determination of the appeal. Failure to deal with an argument that has been advanced, or deciding an appeal on a basis not properly argued, although possibly amounting to a denial of procedural fairness and thereby to an error of law, could not of itself in my opinion be a failure to determine the appeal such as could avoid the operation of the principle in Grierson . To that extent, I prefer the view expressed in Lapa to the contrary view expressed in Saxon and Gust . We note that none of the exceptions referred to by Hodgson JA apply in the present proceedings.

[36]

19 In Codelfa, Mason and Wilson JJ in their joint judgment touched upon the issue of whether a court of last resort, such as the High Court, had the power to vacate orders that had not been perfected. At 38 their Honours stated (emphasis added): Counsel for the Authority referred the Court to many cases to establish the jurisdiction of the Court to entertain the present application. We have no doubt that such a jurisdiction exists: Rajunder Narain Rae v Bijai Govind Sing (1839) II Moo Ind App 181 (18 ER 269). See also Vienkata Narasimha Appa Row v. Court of Wards (1886) 11 App Cas 660; In re Harrison's Share Under a Settlement (1955) Ch 260. Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. In Rae 's Case, Lord Brougham said, in words which the Authority claims are apposite to the present case (1839) II Moo Ind App, at p 220 (18 ER, at p 284): It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of the last resort, where by some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard. We note that Codelfa was not a case where judgment had been entered. 20 In DJL v The Central Authority (2000) 201 CLR 226 the High Court (Kirby J contra) dealt with proceedings in the Full Court of the Family Court of Australia. The High Court held that the Full Court of the Family Court did not have power to re-open final orders after their entry. Importantly, it was stated by the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [43]-[44]: [I]n the present litigation, clarity of thought and the isolation of the true issues have not been encouraged by submissions expressed in general terms respecting the position in "intermediate courts of appeal". In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein. Nor is it of assistance to consider the position with respect to this Court in the exercise of its entrenched jurisdiction as a court of final appeal under s 73 of the Constitution, or with respect to the Privy Council or the House of Lords after R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [2001] AC 119 a decision referred to by the Solicitor-General of the Commonwealth. We would add that the statement in De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 at 215 that the power of the High Court to re-open its judgments and orders is not in doubt should not be misconstrued. In that case and in all of the authorities respecting orders of this Court which were referred to in that passage [ Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; Codelfa ; Autodesk ; Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134] the applications were to re-open final orders and were made before entry of the orders in question. There is, as yet, no decision of this Court which turns upon the position after entry of its final orders.

[60]

45 Whilst any claim for relief in the Court of Appeal is, of course, a matter for the applicants, it was submitted in that respect that the preferable course, rather than the applicants seeking prerogative relief to which they allege they are entitled, is for this Full Bench to re-open and vacate the orders earlier made. We do not agree. Whilst we have proceeded on the basis that this Court is a court of last resort for the purpose of considering whether there are exceptional circumstances warranting re-opening, we are mindful of the force of what was said in Grierson and Bailey v Marinoff and the absence of any persuasive authority regarding the power of a court of last resort to re-open proceedings after orders have been perfected. But also, we consider there does not exist in this case an exceptional circumstance that overcomes the fundamental principle of finality of litigation. In this regard we note the reference to Venkata's case in Codelfa at 39: Even before report, whilst the decision of the Board is not yet res judicata great caution has been observed in permitting the rehearing of appeals. In the last case to which we were referred, that of Hebbert v. Purchas (1871) L.R. 3 P.C. 664, where a litigant alleged, before report and approval, that he had been disabled by want of means from appearing and maintaining his case, the Lord Chancellor said: - 'Having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finalty "(sic)" of the decisions of the Judicial Committee, their Lordships are of opinion that expediency requires that the prayer of the petitions should not be acceded to, and that they should be refused.' There is a salutary maxim which ought to be observed by all Courts of last resort - Interest reipublicae ut sit finis litium . Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this.

At a glance

Court

Decision date

Before

Source

Judgment (64 paragraphs)

Parties

Cases Cited (29)

Cited By (4)