Principles of re-opening of proceedings
- Where, as here, the Court has not issued final judgment and judgment has not been entered, but the Court has issued reasons for judgment, the Court must determine, as a matter of discretion, whether to allow a party to re-open the proceedings and make further submissions. The discretion must be exercised judicially and such a discretion is governed, amongst other matters, by the provisions of s 56 of the Civil Procedure Act 2005 enjoining the Court, the parties and legal practitioners to "facilitate the just, quick, and cheap resolution of the real issues between the parties".
- As the High Court has stated [5] :
[31] It is well settled that a superior court of record such as the Supreme Court has a power to 'reopen' a proceeding until judgment in the case in question has been drawn up, passed and entered. But by what criteria is that authority to be exercised?
[32] It is here that guidance is provided by remarks of Mason CJ in Autodesk Inc v Dyason (No 2). His Honour gave examples from jurisdictions in this country (including the New South Wales Court of Appeal) and the United Kingdom where the power to reopen had been exercised on grounds not limited to denial of a fair hearing, but went on:
'What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.'
The circumstance in Autodesk that Mason CJ dissented as to the outcome of the reopening application which was before this Court does not detract from his remarks." [Footnotes omitted.]
- The judgment in Elliott & Blessington above, relates to a criminal prosecution, but the High Court in the passage above cites its judgment in Autodesk Inc v Dyason (No 2) [6] in which the High Court said:
"[2] … The exercise of the jurisdiction to reopen a judgment and to grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard. It is true that the jurisdiction is to be exercised with great caution (Wentworth v. Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672, at p 684; State Rail Authority of N.S.W. v. Codelfa Construction Pty. Ltd. (1982) 150 CLR 29, at p 38.), having regard to the importance of the public interest in the finality of litigation. It is equally true, as this Court said in Wentworth v. Woollahra Municipal Council ((1982) 149 CLR, at p 684), that:
'(g)enerally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.'
[3] But these statements do not exclude the exercise of jurisdiction to reopen a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders. So much was acknowledged by Brennan, Dawson, Toohey and Gaudron JJ. in Smith v. N.S.W. Bar Association (No.2) when their Honours said ([1992] HCA 36; (1992) 66 ALJR 605, at p 608; [1992] HCA 36; 108 ALR 55, at p 60.):
'if reasons for judgment have been given, the power is only exercised if there is some matter calling for review'.
It is sufficient to give three examples. In In re Harrison's Share under a Settlement ((1955) Ch 260), orders were set aside following a decision of the House of Lords which overruled authorities on the basis of which the orders had been made. In New South Wales Bar Association v. Smith (Unreported, 4 July 1991.), the New South Wales Court of Appeal reconsidered orders previously made in view of an argument that the Court had mistakenly assumed that particular evidence had not been given at earlier hearings (The Court of Appeal refused to set aside its orders but an appeal to this Court was successful). And, in Pittalis v. Sherefettin ((1986) QB 868), a judge recalled orders the day after they were made upon determining that he had 'erred in a material matter in his approach to the case' (ibid., at p 880. The Court of Appeal upheld the decision to review the matter, though disagreeing with the judge's ultimate conclusion.).
[4] These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases." [7]
- These principles were discussed by the Court of Criminal Appeal in relation to an appeal to that Court and, after considering both Elliott & Blessington and Autodesk, the Court of Criminal Appeal [8] said:
"[12] Accepting that it was necessary to reopen the appeal to call further evidence, the applicant assayed that task, but without providing any explanation as to why such further, and arguably more persuasive, material had not been presented on the appeal. Senior counsel for the applicant properly accepted that his application must be confined to material relevant to the existing grounds of appeal. In substance, the applicant has sought to reopen the appeal so as to remedy a deficiency in the material presented at the hearing. That approach would appear to fall squarely within the impermissible purpose of seeking 'by a backdoor method' to reargue an unsuccessful appeal. It cannot be justified on the criteria explained by Mason CJ in Autodesk (No. 2)."
- The principles that have been recited above have been expressed in the context of appeals. The overriding purpose prescribed by s 56 of the Civil Procedure Act and the notion of the finality of judgments may require a slightly more flexible approach when dealing with a matter at first instance. The principle, however, is the same.
- In dealing with the facilitation of a speedy resolution of the issues between the parties, it may be appropriate to discuss the attitude that an appeal court may adopt, if any final orders were the subject of an appeal. If, for example, on appeal, the fourth to sixth defendants would be permitted to press an appeal on the ground that breach of a warranty of authority was, as a matter of fact and law, an apportionable claim, then no purpose (in terms of expedition) is served by refusing the fourth to sixth defendants the ability to re-open and address the issues at first instance.
- There can be no doubt that facilitating a just outcome would require that the Court deal with the matter on the basis of the law as it is, rather than any error based upon the failure to put submissions, or even concede, a particular aspect that was ultimately held to be wrong.
- As to "cheap" (in relation to these circumstances, this has no different meaning from "inexpensive") the costs of the parties have already been expended in addressing the argument and no additional cost is occasioned by allowing the re-opening and deciding the matter on the basis of the law, as I hold it to be. If, as a consequence of the re-opening, error of law is identifiable or manifest, then that is a matter for any such appeal court.
- This is not a case in which the parties have acted to their detriment on a basis of a position adopted by another party. Nor is it a case in which evidence has been adduced in circumstances where the party adducing the evidence could rely upon a position that is now sought to be withdrawn or substantially varied. There are and have been other proceedings in which, for example, parties seek to re-open after reasons for judgment but before entry of judgment in order to re-plead a defence in circumstances where the existence of that defence would or may have significantly affected the decision of an opposing party to adduce the evidence upon which that altered defence depends. [9]
- In these proceedings, and on the application for re-opening, all of the evidence was adduced in circumstances where liability was in issue, relative liability was in issue and the parties adduced all of the evidence upon which they could possibly have relied were this matter to have been argued in submissions at the conclusion of the trial or otherwise. Further, the pleadings in the proceedings do not permit the Court to draw an inference that any party could possibly have been misled in a way which would have prejudiced their, or its, position on this matter.
- Nevertheless, it is essential that the Court not allow parties to have an ability to reargue those matters upon which they were unsuccessful because some further argument has occurred to them, or they consider the Court has fallen into error. That, in any general sense, would not facilitate the just, quick and cheap resolution of issues between the parties, but rather prolong proceedings and undo the finality of proceedings at first instance.
- Ultimately, the determination of whether to allow these issues to be re-agitated is an exercise of the discretion of the Court. While the Court at first instance is not in the same position as an appellate court, some guidance may be taken, in the exercise of that discretion, from the attitude on appeal of intermediate courts of appeal. In Teoh v Minister for Immigration, Local Government & Ethnic Affairs, [10] a full court of the Federal Court (Black CJ, Lee and Carr JJ) allowed an amendment to the original proceedings to allow the point of law to be taken on appeal in circumstances where the point had not been argued before the first instance judge, because it was within the scope of the issues raised by the case as presented.
- In this court, the Court of Appeal had an undoubted discretion, in the interests of justice, to permit a point to be taken on appeal that was not taken at the trial. Generally, that is done in exceptional cases only and will not occur where evidence could have been adduced which would be, or could be, an answer to the point taken: see Coulton v Holcombe. [11] There are many cases dealing with what may be exceptions.
- Nevertheless, it has been decided that a pure question of law, raised for the first time on appeal, in circumstances where no further evidence could have been called at the trial or where the pleadings disclose that the point may have been a live issue upon which evidence should have been called, can be raised. [12] In Brown v Brown, Gleeson CJ dealt with the points sought to be raised on appeal for the first time, namely whether the presumption of advancement was available to rebut a presumption of a resulting trust, without discussing, in his reasons for judgment, whether the point should have or could have been raised. The other member of the Court, Cripps JA, agreed with Gleeson CJ. Only Kirby P discussed in any detail any issue associated with a difficulty in raising the legal argument before the Court on appeal for the first time and that was in the passage to which reference has been made. Otherwise, Kirby P was in dissent as to the orders that ought to be made. [13]
- In Pittalis and Another v Grant and Another, [14] Nourse LJ said:
"The stance which an appellate court should take towards a point not raised at the trial is in general well settled …. It is perhaps best stated in Ex p Firth, re Cowburn (1882) 19 Ch D 419 at 429, [1881-5] All ER Rep 987 at 991 per Jessel MR:
'… the rule is that, if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance, so as to enable the other party to give evidence.'
Even if the point is a pure point of law, the appellate court retains a discretion to exclude it. But where we can be confident, first, that the other party has had opportunity enough to meet it, second, that he has not acted to his detriment on the faith of the earlier omission to raise it and, third, that he can be adequately protected in costs, our usual practice is to allow a pure point of law not raised below to be taken in this court."
- It is not for the Court as presently constituted to determine whether the Court of Appeal would or would not grant leave to raise the point on appeal. It is however, relevant that a court of appeal could allow the point to be raised and, given that the issue was a live one at the time that evidence was adduced and the parties argued apportionment generally, not being aware as to which course of action would succeed, it cannot be suggested that the plaintiff could have called evidence, otherwise available, that would answer the point that is now sought to be raised.
- Fundamentally, the issue concerns the balance between justice and expedition. Further, were I to refuse leave to re-open and the issues sought to be raised showed an error in the application of principle to the damages issue (even if on the basis of an implied concession in submissions at trial), the Court of Appeal, if there were an appeal, would be faced with an exercise of discretion as to the re-opening and the difficulties associated with an appeal on that basis.