R v Pettigrew [1996] QCA 235

Although they disagree on the ultimate disposition of the applicant's appeal, the other members of this Court agree that the Court has power to make the orders sought by the applicant. It would be regrettable if that were not so. When this Court refused the applicant's previous application for leave to appeal it acted on an erroneous factual basis because it was inadvertently misinformed by counsel then appearing; the source of the confusion on that occasion lay in ambiguity in the terms in which sentences were imposed on the applicant in the District Court on 10 March 1995.

In order to answer the threshold question, it is necessary to first identify the true nature of the applicant's present application. Subject to one possible qualification,[2] discussed below, the applicant effectively seeks to set aside this Court's previous decision. If that were done, neither an extension of time nor a fresh application for leave to appeal would be needed; the initial application would remain for determination. Conversely, unless that is done, success by the applicant in the present proceeding would result in two contradictory orders in the formal record, one refusing and the other granting leave to appeal, with the latter order also allowing the appeal which the former order refused to allow to proceed.

Grierson decided that the New South Wales Court of Criminal Appeal had correctly refused to reopen an appeal against conviction which it had earlier dismissed or to entertain a fresh appeal in respect of the same conviction. It was held that that Court's jurisdiction was confined within the limits of the Criminal Appeal Act of 1912 (N.S.W.), which, it was noted, provided other avenues for a conviction to be questioned even after an appeal against conviction had been dismissed; s. 475 of the Crimes Act 1900 empowered the Government to order an inquiry after a conviction, and s. 26 of the Criminal Appeal Act of 1912, while preserving the pardoning power of the Governor, enabled the Minister of Justice to (i) refer any petition for the exercise of the pardoning power to the Court of Criminal Appeal, which was then to hear and determine the case as if an appeal by a person convicted,[3] or (ii) refer any point arising in the case to the Court for its opinion thereon.

The conclusion in Grierson was based on the construction of the relevant New South Wales legislation: see per Rich J., with whom McTiernan J. agreed, at pp. 434-435, per Jordan C.J. (in the New South Wales Court of Criminal Appeal), with whom Starke J. agreed, at pp. 432-433, and per Dixon J.(as his Honour then was), with whom McTiernan J. also agreed, at pp. 435-436. Commencing towards the foot of p. 435, Dixon J. said:

"... The jurisdiction is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers. The Criminal Appeal Act of 1912 (N.S.W.) is based upon the English Act of 1907. It does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources. It defines the grounds, prescribes the procedure and states the duty of the court. The statute deals with criminal appeals rather as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as of right and by leave and the procedure which they must observe. It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where the sentence is capital. The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed. The determination of an appeal is evidently definitive, and a conviction unappealed is equally final."

"... No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings. Appeal is not a common-law remedy, and proceedings at law are only subject to that remedy by statute (Attorney-General v. Sillem (1864) 2 H. & C. 581, at pp. 608, 609; 159 E.R. 242, at p. 253). ... Under the Judicature system an action may be brought to set aside a judgment obtained by fraud, but it is an independent proceeding equitable in its origin and nature (Ronald v. Harper [1913] VicLawRp 80; (1913) V.L.R. 311, at p. 318, per Cussen J.; Halsbury's Laws of England, 2nd ed., vol. 19, p. 266, and the case there collected, particularly Jonesco v. Beard (1930) A.C. 298). But under that system no court has authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up (In re St Nazaire Co. (1879) 12 Ch.D. 88). ..."

In re St Nazaire Co. concerned the lack of power of a single judge to rehear a civil matter which had been decided and the order perfected, and, like Grierson, substantially depended upon the construction of the material statute, the Judicature Act 1873 (Imp) and rules. Broadly speaking, provisions for appellate review were seen as inconsistent with the co-existence of a power in the Court or Judge who pronounced a judgment or made an order to vary or set aside that judgment or order. A similar position was adopted in relation to civil judgments and orders of the Supreme Court of Queensland by reference to the Judicature Act 1876:[4] see Woods v. Sheriff of Queensland (1895) 6 Q.L.J. 163.

As is indicated by Grierson,[5] appeals are, largely at least, the creature of statutes and subordinate legislation, and an appellate court's jurisdiction and powers depend on the construction of the material legislation and rules. The questions of construction which arise fall for decision in the context of competing public interests;[6] there is a public interest in the finality of litigation (see, for example, Bailey v. Marinoff [1971] HCA 49; (1971) 125 C.L.R. 529, and Nintendo) which is emphasised by the scarcity of resources and the heavy demands on the court system (cf Sali v. SPC Ltd [1993] HCA 47; (1993) 67 A.L.J.R. 841; 116 A.L.R. 625, 636); conversely, the powers of an appellate court should be wide enough to prevent injustice,[7] especially when, as with this Court, the opportunity for further appeal is strictly limited.[8] The orthodox view is that a court, including an appellate court, ordinarily lacks power to reconsider a civil appeal which it has decided, or to vary or set aside the judgment or order which it has given or made after it has been perfected: see, for example, Gamser v. Nominal Defendant [1977] HCA 7; (1977) 136 C.L.R. 145; Bailey; Wentworth v. Attorney-General (NSW) [1984] HCA 70; (1984) 154 C.L.R. 518, 525-526. And the jurisdiction and powers of this Court under the provisions of the Criminal Code which are presently material (see ss. 668D, 671, 672A)[9] are not significantly different from those of the New South Wales Court of Criminal Appeal which were discussed in Grierson, which is, of course binding on this Court.

The general principle that, once a judgment or order has been entered, the court or judge which made the order or pronounced the judgment has no power to review the decision or vary or set aside the judgment or order is subject to a number of qualifications, at least in civil cases. For example:

(i) Mistakes and errors in judgments and orders arising from any accidental slip or omission may be corrected: R.S.C. O. 32 r. 12. Similar rules have been authoritatively considered in such cases as Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co [1973] 1 W.L.R. 300; L Shaddock & Associates Pty. Ltd. v. Parramatta City Council (No. 2) [1982] HCA 59; (1982) 151 C.L.R. 590; Gould v. Vaggelas (No. 2) (1985) 60 A.L.J.R. 49 at 51; 62 A.L.R. 527 at 530; Storey & Keers Pty. Ltd. v. Johnstone (1987) 9 N.S.W.L.R. 446 at 452-53; Cawood v. Infraworth Pty. Ltd. [1990] 2 Qd. R. 114 at 122; D.D.B. Needham Sydney Pty Ltd v. Elyard Corporation Pty Ltd (1995) 131 A.L.R. 213. For the moment, I propose merely to note the statement by Mason A.C.J., Wilson and Deane JJ. in Shaddock at p. 594 that such a rule "reflects the inherent jurisdiction of a court ...".

(ii) The Supreme Court of Queensland also has power to grant "appropriate relief", "[w]hen facts arise after the giving of a judgment or making of an order which entitle a person against whom the judgment or order is given or made to be relieved from it, or when facts are discovered after the giving of a judgment or making of an order which, if discovered in time, would have entitled the party against whom the judgment or order is given or made to a judgment or decision in the party's favour, or to a different judgment or order ...": R.S.C. O. 45 r. 1.[10] Recent cases in which that rule has been considered include Drabsch v. A.M.P. Fire & General Insurance Company Ltd [1991] 2 Qd.R. 614; Breen v. Lambert & anor. (No. 4547 of 1988, unreported judgment of Thomas J., 16 August 1991; affirmed 15 June 1992); Potts v. Westpac Banking Corporation (C.A. 176 of 1992, unreported judgment, 10 March 1993); Tallon v. The Proprietors of Metropolitan Towers Building Units Plan No. 5157 (C.A. 125 of 1993, unreported judgment, 6 December 1993); Cameron & ors. v. Shire of Noosa (1995) 86 L.G.E.R.A. 247; cf Rules of the Federal Court of Australia O. 33 rr. 7(2) and (4); R. D. Werner & Co. Inc. v. Bailey Aluminium Products Pty. Ltd. (1987) 16 F.C.R. 488; Supreme Court Rules (NSW) Pt. 42, r. 12(1); Wentworth v. Attorney-General (N.S.W.). In Wentworth v. Attorney-General (N.S.W.), the High Court accepted at p. 525 that a superior court of record has a limited inherent jurisdiction to set aside or vary an order by reference to changed circumstances, although "the various exceptional cases" were not identified. Justification for setting aside an order remitting issues to the Equity Division of the New South Wales Supreme Court for decision was there found in the circumstance that the order "...was merely an order regulating the procedure to be followed in the future conduct of proceedings ... which, if carried out, would ultimately result in a futility."

(iii) A superior court's power in relation to interlocutory orders is not necessarily identical in all respects to its power in relation to final orders. Further, it is necessary to differentiate between two different powers where interlocutory orders are concerned; the power presently material is the power of the court by which an interlocutory order was made to set aside or vary that order after it has been perfected. That is different from the power of an appellate court to proceed inconsistently with an interlocutory order made at an earlier stage of a proceeding when determining an appeal against the final judgment or order in the proceeding.

The latter power of an appellate court exists even in criminal proceedings (Bunning v. Cross [1978] HCA 22; (1978) 141 C.L.R. 54, 82), and has been given a wide operation by this Court: see Baker v. Pioneer Industries Pty. Ltd. (Appeal No. 58 of 1995, unreported judgment, 19 December 1995), in which reference was made to the New South Wales Court of Appeal's decisions in Smith v. Tabain (1987) 10 N.S.W.L.R. 562 and National Employers Mutual General Insurance Association Ltd. However, the present proceeding has not progressed to the point at which that power could be utilised.

There is some uncertainty concerning the power which is presently material, that of a court which made an interlocutory order to set aside or vary that order.

In Woods, Griffith CJ, with whom Harding and Real JJ. concurred, traced the former power to the writ of audita querela by which relief against a final judgment could be obtained at common law on the basis of new facts arising after judgment and the similar relief available in Chancery by a bill in the nature of a bill of review. After reference to the precursor to R.S.C. O. 45 r. 1., his Honour said at p. 165:

"The same principle that allows relief to be given against the continued operation of a final judgment obviously extends also to giving relief against the continued operation of an interlocutory order, if after it is made new facts come into existence or are discovered which render its enforcement unjust. Such a contingency is plainly much more likely to arise in the case of an interlocutory order than in that of a final judgment. In my opinion, it is the settled practice of the Court to exercise the power of giving relief in such cases. An application for such relief is not in the nature of an appeal or rehearing; each of these is founded on the contention that the order appealed from ought not to have been made. An application for a new order which has the effect of suspending in whole or in part the operation of a previous order starts with the assumption that that order was rightly made. There is therefore no question of reversing or varying or rehearing the original decision or order. It follows that the application for relief from it need not be made to the court or judge by whom the original order was made, but may be made to any judge who can exercise the jurisdiction of the court, although it would ordinarily be made to the same court or judge; and the relief may be granted by a judge in chambers (if it is a proper case for chambers) although the original order was made by the Full Court - whether on appeal or otherwise. If it should turn out that the application is based upon the assumption that the order, the operation of which it is desired to modify was wrongly made, it must fail. The only question is whether the party applying is entitled under the altered circumstances to be relieved from the operation of the order.

Applying those principles to the present case, it appears that the order of Real, J., of 20th June, was rightly made, but that according to the practice of the Court, the plaintiff, having returned within the jurisdiction, is entitled to be relieved from its operation. (Redondo v. Chaytor, 4 Q.B.D, 453; Ross v. Green, [1855] EngR 198; 10 Ex., 891; Place v. Campbell, 6 D. & L., 118; O'Connor v. Sierra Nevada Co., [1857] EngR 893; 24 Beav., 435). The substantial result will be the same as if the order were discharged. Perhaps a more accurate form of expressing the result would be to order that the plaintiff be discharged from the obligation to give security for costs imposed by that order. (Per Brett, J., in Westenberg v. Mortimore, L.R., 10 C.P., 438). The plaintiff must, as indeed is conceded, pay the costs of this application."

There is nothing in R.S.C. O. 45 r. 1 which excludes interlocutory orders from its application, and, in civil proceedings at least, the power for which that rule provides is stated to be exhaustive: R.S.C. O. 45 r. 3. In the absence of such a provision, there is an inherent jurisdiction to set aside or vary an interlocutory order, but there are conflicting statements concerning the extent of the power of the court which originally made the interlocutory order. In Lewis & anor. v. Daily Telegraph Ltd. & anor. [1964] 1 All E.R. 705, Pearson L.J. seems to have considered that the only power was that given by the Rules and was limited to changing only the method of giving effect to an interlocutory order, not its substance (p. 710), and that if some new situation arises in which convenience or justice requires some modification or adaptation of an order having a continuing operation (being worked out or working itself out as the action proceeds) to fit the new situation, the Rules can be used for that purpose (p. 711). That view is narrower than the opinion expressed by the High Court in Wentworth v. Attorney-General (N.S.W.). Further, although Pearson L.J. in Lewis described both Mullins v. Howell (1879) 11 Ch. D. 763 and Ainsworth v. Wilding (1896) 1 Ch. 673 as included in the "most important authorities", both support a wider power than that which Pearson L.J. thought existed. Mullins, in particular, places interlocutory orders in a special position; Jessel M.R. stated at p.766 that the Court has "... a sort of general control over orders made on interlocutory applications." See also Wilkshire and Coffey v. Commonwealth (1976) 9 A.L.R. 325, 329ff and cases cited; and Werner at p. 545.

A specific example of a power to set aside interlocutory orders is to be found in the rescission of a grant of leave to appeal. In their joint judgment in Sanofi, Gibbs C.J., Stephen and Mason JJ. said at p. 153:

"It is always open to a court which has granted leave to appeal or special leave to appeal to rescind that grant if it later appears to the court, in the light of further information or argument, that the leave or special leave should not have been granted."

(iv) A superior court has a power to set aside a judgment or order on the ground of irregularity - in which event the court has a discretion whether to set aside the judgment or order or not - or on the ground of fundamental miscarriage - in which case the person prejudiced is entitled ex debito justitiae to have the judgment or order set aside: Brennan v. Brennan [1953] HCA 28; (1953) 89 CLR 129, 134. In that case, the High Court described a "fundamental miscarriage" as a "... flaw ... which prevents the [proceeding] being a real proceeding at all ...". Whichever is the basis on which it is set aside, a judgment or order of a superior court remains operative in the interim.[11]

(v) A superior court also has power under its inherent jurisdiction to set aside or vary a judgment or order which has been perfected if the court or judge was misinformed although there was no fraud involved: see, In re William Bruce [1886] VicLawRp 144; (1886) 12 V.L.R. 696 where the Full Court of Victoria held that a court or judge:

"... has power to set aside an order made by it or by him upon being satisfied either that the order has been made improvidently, or that facts have been withheld from him which should have been disclosed to him, but which were not disclosed either through negligence or some other cause. Every court and every judge has, we think, power to do that, and to set aside any act of their or his own shown to have been done under circumstances which operated to deprive his mind of the power of exercising a fair judgement at the time. The appeal, we think therefore lies." (per Higginbotham J. at p. 709).

Dicta of the Victorian Full Court in Hall v. Harris [1900] VicLawRp 87; (1900) 25 V.L.R. 455 at 460 also provides support for this view. See also Ex parte Tewkesbury [1898] NSWLawRp 87; (1898) 19 L.R. (NSW) 440; and Wilkshire and Coffey.

The discussion of each of the topics the subject of paragraphs (i) to (v) inclusive involves reference to inherent jurisdiction. Although, so far as I am aware, the ambit of a superior court's inherent jurisdiction has never been exhaustively described, the modern trend is towards an acceptance that power exists to do what is necessary for the court "to fulfil its judicial functions in the administration of justice" and "prevent any obstruction or interference with the administration of justice": Jacobs, I.H., The Inherent Jurisdiction of the Court, Current Legal Problems (1970), 23 at 32. A number of modern authorities bear out these statements (consistently with the dissenting judgment of Gibbs J. in Bailey).

In Jackson v. Sterling Industries Ltd [1987] HCA 23; (1987) 162 C.L.R. 612, Gaudron J. at p. 638 quoted a passage from the judgment of Alderson B. in Cocker v. Tempest [1841] EngR 242; (1841) 7 M. & W. 502, at pp. 503-504; [1841] EngR 242; 151 E.R. 864, at p. 865, and, after reference to other authorities, continued at p. 639:

"In Connelly v. Director of Prosecutions [[1964] A.C. 1254], Lord Morris [at p. 1301] held that `There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction'; and this power has not, traditionally, been restricted to defined and closed categories ... but may be exercised where the administration of justice demands it ..."

In Hamilton v. Oades [1989] HCA 21; (1989) 166 C.L.R. 486, Deane and Gaudron JJ. said at p. 502:

"The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice ... . In the case of the Supreme Court of New South Wales that power is confirmed by s. 23 of the Supreme Court Act 1970 (N.S.W.) which states that the `Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales' ...

The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories ..."

The power of a court to take appropriate action to prevent injustice was again recognised in Jago v. The District Court of New South Wales [1989] HCA 46; (1989) 168 C.L.R. 23 and Dietrich v. The Queen [1992] HCA 57; (1992) 177 C.L.R. 292. As the decisions referred to state, the circumstances in which the power is available is not confined to closed categories.

In Ansett Transport Industries (Operations) Pty Ltd v Newtons Travel Services Pty Ltd (In Liquidation) [1990] VicRp 3; [1990] V.R. 37, Young C.J., with whom Kaye J. agreed, found that the Court had the power to set aside a judgment regularly obtained, stating at pp. 38-39:

"It is, of course,...a very unusual proceeding for a party who has obtained a judgment to seek to have that judgment set aside and particularly to do so after the judgment has been perfected by being passed and entered and after a considerable time has elapsed.

There is, I think, no doubt that the court has power to set aside a judgment regularly obtained and that power has been exercised, but only in circumstances vastly different from the circumstances in which we are confronted this morning. Nevertheless, I think that this is a case in which the court ought to exercise the power to set aside the judgment, and I do so because the nature of the circumstances which I have recited suggests that injustice will be done to the present appellant or applicant if the judgment is allowed to stand...

The powers of the court may always, in my view, be exercised in order to defeat injustice, so far as they possibly can, and these are circumstances in which I think, for the reasons I have attempted to give, that those powers should be exercised."

In R v Allen, [1994] 1 Qd.R. 526, the Queensland Court of Criminal Appeal (de Jersey and Dowsett JJ, Macrossan C.J. dissenting) held that the Court of Criminal Appeal had inherent jurisdiction to vary its order where the order arose from a slip or omission, notwithstanding that such order had been perfected. In Allen, the appellant's conviction depended on a view of the law which was subsequently rejected by the High Court. Dowsett J., with whom de Jersey J. agreed, made reference to the use of the `slip rule' in civil matters and said at p. 529:

"... Whether the slip rule applies to proceedings on the criminal side in this Court or not does not matter. If it does not, then the inherent jurisdiction is available."

Most recently, in R. v Salvatore Lapa (No.2) (N.S.W.C.C.A. No. 60460 of 1993, unreported, 14/8/1995) the N.S.W. Court of Criminal Appeal chose to reopen an appeal, after judgment had been perfected, on the basis that failure to do so might lead to a miscarriage of justice. In that case a ground of appeal advanced by the accused had not been determined by the court. At the time when an application for reconsideration was filed, the judgment had not been perfected. However, further action taken by the Registrar of the District Court might have perfected the order prior to the determination of the application. The Court held that it had jurisdiction to remedy the oversight where the application had been made before the judgment was perfected, notwithstanding that the judgment was perfected while the Court was considering the matter. Clarke J.A. (with whom Handley J.A. and Sully J. agreed) referred to Allen as authority for the proposition that the inherent jurisdiction of the court enabled the court to entertain an application to reopen proceedings without commenting on the correctness of Allen. His Honour went on to say:

"The manner of perfection of the order of the Court of Criminal Appeal (ie. by the Registrar of the District Court noting it on the indictment) when coupled with the fact that there is no question that the perfected order will affect the rights of third parties or settle questions of status does lead me to question whether the interests of justice are furthered by the maintenance of the rigid distinction drawn by the common law rule as evidenced in authorities such as Bailey [Bailey v. Marinoff [1971] HCA 49; (1971) 125 C.L.R. 529] in a case such as the present. I do not doubt that the principle of finality is of first importance. What I do question is whether it should operate so as to close off automatically any reconsideration of a judgment after it has been perfected, at least where questions of status and the rights of third parties are not concerned. To take the instant case as an example - why should the rights of the parties be so dramatically affected by the administrative actions of a court officer?

Where an application for consideration of a judgment is made before the judgment is perfected a court accords great weight to the principle of finality and, primarily for this reason, it is only in rare cases that it does accede to the application. A similar approach in cases where a judgment has been perfected would, in my opinion, more readily meet broad considerations of justice than the present rule does.

In each case the principle of finality would be of primary importance but the court would be able to exercise a judicial discretion having carried out a balancing exercise. Where questions of status or the rights of third parties are involved these stand as additional and important reasons why a court should not re-open its judgment once it had been perfected."

His Honour also made reference to Pantorno v. R [1989] HCA 18; (1989) 166 C.L.R. 466, where Deane, Toohey and Gaudron JJ. said at p. 484:

"... the application for special leave to appeal to this Court was argued on the basis that, once judgment had been delivered by the Court of Criminal Appeal or (at the latest) once the judgment had been perfected, the jurisdiction of that Court was exhausted. In a case such as the present where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that Court."

Finally, so far as presently material, Clarke J.A. said:

"The fundamental consideration which should determine whether a court of criminal appeal should reconsider its judgment is whether the failure to do so might lead to a miscarriage of justice. To put it another way, the application should be determined upon the interests of justice, giving full weight to the principle of finality. The second consideration is the basic practical one to which reference was made by the High Court in ... Pantorno. That is, that the Court of Criminal Appeal should deal with all grounds of appeal upon which argument was proffered before the case is sent to the High Court for consideration of a leave application."

I have discussed these issues because they appear to me important despite the applicant founding his case on sub-s. 8(1) (formerly sub-s. 9(1)) of the Supreme Court Act 1991. Without analysis of the Supreme Court's prior jurisdiction, which can be traced back to the Supreme Court Constitution Amendment Act of 1861, the Additional Judge Act 1862 and the Supreme Court Act of 1863[12] and included the jurisdiction equivalent to that of the New South Wales Supreme Court under the Australian Courts Act 1828 (9 Geo IV c 83) and New South Wales legislation enacted between then and 1859, it does not seem to me easy to be satisfied that the 1991 Act materially extended the Court's jurisdiction. However that might be, previous authorities which assist to explain the Court's jurisdiction prior to the 1991 Act provide a helpful, if not essential, background to the construction of the relevant provisions of that Act, which affect the jurisdiction and powers of the Trial Division as well as the Court of Appeal. The breadth of the operation accorded to sub-s. 8(1) of the 1991 Act will determine the powers of both Divisions of the Supreme Court, and, potentially at least, not only this Court but also the Trial Division has a much wider power to depart from decisions which have been delivered and perfected than has previously been recognised; if given the widest possible operation, the 1991 Act would involve a radical departure from both principle and practice established since the introduction of the Judicature Act (Imp) in 1873. Further, reliance on sub-s. 8(1) of the 1991 Act does not seem to me essential in order to find a satisfactory solution to the present case.

"8 (1) The Court has all jurisdiction that is necessary for the administration of justice in Queensland.

(a) is the supreme court of general jurisdiction in and for the State; and

(b) has, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise."

"9 Except as provided in this Act, this Act does not take away, lessen or impair any jurisdiction or power that was, immediately before the commencement of this section, vested in or capable of being exercised by the Court or 1 or more judges."

Provisions with respect to the Supreme Court's appellate and other jurisdiction are also contained in ss. 29, 55(2), 56(1) and (2) and 69(1) of the Supreme Court of Queensland Act 1991, which respectively provide:

"29 (1) Subject to this Act, the Court of Appeal has jurisdiction to hear and determine all matters that, immediately before the commencement of this section, the Full Court had jurisdiction to hear and determine.

(2) The Court of Appeal has such additional jurisdiction as is conferred on it by or under this Act, another Act or a Commonwealth Act.

(3) The Court of Appeal may, in proceedings before it, exercise every jurisdiction or power of the Court, whether at law or in equity or under any Act, Commonwealth Act or Imperial Act."

(By s. 2, the Full Court includes the Court of Criminal Appeal.)

(2) The jurisdiction and powers of the Court that are not required to be exercised only by the Court of Appeal may be exercised by the Court in the Trial Division."

"56 (1) All proceedings in the Trial Division are to be heard and disposed of before a single judge.

(2) For those proceedings, the judge constitutes, and is to exercise all the jurisdiction and power of, the Court.

"69 (1) Subject to this and any other Act, an appeal lies to the Court of Appeal from -

(a) any judgment or order of the Court in the Trial Division; ..."

(Compare s. 254 of the Supreme Court Act 1995 (formerly s. 10 of the Judicature Act 1876.)

(By s. 2, the Full Court includes the Court of Criminal Appeal.)

This Court has not been prepared to give sub-s. 8(1) of the 1991 Act the full literal operation of which it is capable. In Skase (C.A. 24 of 1994; unreported, 10 February 1994), the Court rejected an argument that an appeal lay from a decision of a District Court judge that a warrant for the arrest of Skase issue under s. 562 of the Code. Pincus J.A., with whom Davies J.A. and I agreed, said:[13]

"There are provisions in the Criminal Code defining the extent of this Court's jurisdiction in criminal matters; Mr Callinan QC, who led Mr Carmody for the respondent pointed to one, s. 668D. It was not submitted that the Court has jurisdiction to hear the appeal under any provision of the Criminal Code, but Mr Callinan suggested, in effect, that this Court has no criminal appellate jurisdiction in relation to indictable offences other than that given by the Criminal Code, which is exhaustive of the subject, so far as appeals from the District Court are concerned.

Mr Herbert argued that a combination of ss. 9 and 29 of the Supreme Court of Queensland Act 1991 confers jurisdiction on this Court to hear this appeal. Section 9(1) says: `The Court has all jurisdiction that is necessary for the administration of justice in Queensland.'

Section 29(1) gives this Court the jurisdiction to hear and determine all matters which the Full Court used to have jurisdiction to hear and determine. Section 29(2), relied on by Mr Herbert, says: `The Court of Appeal has such additional jurisdiction as is conferred on it by or under this Act, another Act or a Commonwealth Act.'

As I understood Mr Herbert's argument, it is that this Court has power to hear the appeal because it not only has the jurisdiction which the Full Court used to have but all jurisdiction necessary for the administration of justice in Queensland. It is said that section 9(1) is broad enough to give unlimited appellate jurisdiction.

There appears to me to be no logical stopping place in Mr Herbert's argument on this point short of the proposition that in addition to the appellate jurisdiction in criminal matters conferred on the Court by provisions such as s. 668D of the Criminal Code, this Court may hear an appeal against any other order, direction or judgment of the District Court in any matter because that jurisdiction is `necessary for the administration of justice in Queensland' within the meaning of s. 9 of the Supreme Court of Queensland Act 1991.

In my opinion, this submission should be rejected. The extent to which appellate jurisdiction in appeals from the District Court is necessary for the administration of justice has received the specific consideration of the legislature; it appears to me improbable that the intention, in enacting s. 9 of the Supreme Court of Queensland Act 1991, was that, in addition to any specific provision granting this Court appellate jurisdiction, this Court should have an appellate function in respect of all orders not otherwise specifically dealt with.

More particularly, I am of opinion that the provisions of the Supreme Court of Queensland Act 1991, on which Mr Herbert relied, do not give this Court jurisdiction to hear an appeal from an order made by the District Court under s. 562 of the Criminal Code."

While decisions concerning the ambit of s. 23 of the Supreme Court Act 1970 (N.S.W.) which are referred to by Pincus J.A. in his reasons for judgment in the present case are consistent with this Court's decision in Skase, they do not require that sub-s. 8(1) be given a narrow construction. Although it would be imprudent to attempt an exhaustive definition of the ambit of operation of sub-s. 8(1), it falls for consideration as one element of a complex system which includes other legislative provisions, some dealing directly and specifically with the prosecution of offences and the determination of disputes by judicial process, including provisions giving and qualifying rights of appeal, and formal and judicially declared rules of practice and procedure. In my opinion, Parliament cannot be taken to have intended that sub-s. 8(1) set all such matters at naught; the power which it grants is "not at large": cp. Reid v. Howard (1995) 69 A.L.J.R. 863, 871. On the other hand, a restrictive construction of legislation plainly intended to have a beneficial effect is not called for.

I do not think it is necessary to take the matter further on this occasion. Whether or not the 1991 Act added substantially to the Court's inherent jurisdiction, the Court has power to set right a problem such as that provided by the previous refusal of special leave in the present case. In my opinion, the power to prevent injustice clearly includes power to set aside an interlocutory order refusing leave to appeal after that order has been perfected when the interlocutory order was based upon a factual misapprehension, shared by the parties and the Court, derived from ambiguity in the order of a lower Court.

It remains to add that this is a much stronger case than Allen, and significantly different from both Smith and Grierson, each of which involved an attempt to reopen a final order dismissing an appeal against conviction on the merits.

Accordingly, I would set aside the Court's previous refusal of the applicant's application for leave to appeal, which consequently remains for determination.

Once this point is reached, it remains to consider the merits of that application. On that subject, I agree with the reasons for judgment of Pincus J.A. and have nothing to add.

In summary, I would set aside the Court's previous order refusing leave to appeal, grant leave to appeal, allow the appeal, and make the further orders proposed by Pincus J.A.

These are applications for extensions of time for leave to appeal against sentence. The applicant was sentenced in the District Court on 10 March 1995 in respect of two groups of offences, and in the Supreme Court on 7 August 1995 in respect of another group.

A difficulty arose because of an ambiguity in the orders made in the District Court. The first group of offences dealt with in the District Court is conveniently treated as a group because it is clear that all those sentences were concurrent. There were three counts the nature of which is not stated in the record, and eight counts of obtaining property, as well as a wilful damage count. The last attracted 6 months imprisonment and all the rest 2 years, and as I have said all these were made concurrent. The group I am discussing were described in this Court on 4 October 1995 as property offences.

The second group of offences dealt with in the District Court consisted of three counts of assault, two being common assault and one indecent assault. They were all complaints by the same complainant, who was attacked by the applicant as she was walking to work one morning. After discussing the facts, the District Court judge said: "In regard to the indecent assault, you are sentenced to 4½ years imprisonment, in regard to the two assault counts, 1 years imprisonment. Those will be served concurrently inter se, but cumulatively with the other sentences."

The word "those" must have been intended to refer to the assault sentences - i.e. the indecent assault as well as the two common assaults. It would have made no sense to pick out two of those counts and make the sentences relating to them cumulative upon that imposed in respect of the third count. That is, it is plain from the circumstances, although not so plain from the language used, that the judge must have intended to impose total sentences of 6½ years - 2 years for what were later called the property offences and 4½ years for the assaults.

The third group of offences were as I have said dealt with by Derrington J in the Supreme Court on 7 August and they were two drug offences. The judge sentenced the applicant to 18 months for each, to run concurrently with each other and "to be cumulative with the sentences that you are already serving".

When the assault sentences came to be considered before this Court, as they did, on 16 May 1995 by way of an application for leave to appeal, the application was refused, but, according to the transcript, the Court went on: ". . . the Court confirms that the sentences imposed upon the applicant are imprisonment for 4½ years in respect of the offence of indecent assault, and 1 year in respect of each of the offences of common assault. Each offence (sic) for common assault is to be served concurrently with the other and also concurrently with the sentence imposed for indecent assault."

In that statement, the Court did not expressly deal with the question whether the assault terms were cumulative upon the other offences dealt with by the Court on the same day. But in deciding as it did that all the assault terms were intended to be served concurrently with one another, the Court necessarily determined that the word "those" in the last sentence of the District Court's sentence orders referred to all the assault counts, from which it followed that all the assault sentences were to be served concurrently inter se, but cumulatively with the others.

The applicant has asked for an extension of time to apply for leave to appeal to attack the sentences imposed in the District Court, which I have discussed. That application has already been refused, on 1 February 1996. He has also applied for an extension of time within which to re-open proceedings to correct what are said to be sentencing errors. In that application it is said that the Court, apparently meaning this Court, imposed a sentence "cumulative to my present sentence whilst under the mistaken belief that I was serving a 4½ year prison sentence, when in fact I was serving a 6½ year prison sentence". This is presumably a reference to remarks made when judgment was delivered on 4 October 1995 in an application for leave to appeal against the Supreme Court sentences for the drug offences. It is true that the reasons given in this Court were based on the assumption that the District Court property offence sentences were concurrent with the assault sentences. The reasons referred to the last occasion on which the applicant had been sentenced, which was the District Court sentence in March, in the following terms: "The last of these was a term of 4½ years imprisonment, to which I have just referred, which was for indecent assault, assault, and some property offences". Later the Court referred to a term of 4½ years imprisonment as having been imposed in March and the submissions made on behalf of the applicant on that occasion were considered on that assumption, which was erroneous. But the application for an extension of time within which to re-open proceedings refers to a sentence imposed by this Court under the belief just discussed; of course this Court did not impose any sentence, but merely refused leave.

If any injustice has been done to the applicant it is, as it seems to me, that he was dealt with in this Court on 4 October on the basis that he had an existing sentence of only 4½ years imposed in the District Court whereas in fact he had sentences of 6½ years in total, so that his total sentences were 8 years, not 6 years. The Court was told then, erroneously, that he was due for release in August 1999. There is also said to be a problem in construing the order of Derrington J considered on 4 October and that is further mentioned below.

The applicant seeks to re-open the matter dealt with in this Court on 4 October. Mr Hamlyn-Harris has submitted, in a helpful argument, that this Court has jurisdiction to do so on a number of suggested bases. In Grierson [1938] HCA 45; (1938) 60 C.L.R. 431 the High Court held that the New South Wales Court of Criminal Appeal had no jurisdiction to re-open an appeal which it had finally determined. That has been applied to the Queensland Court of Criminal Appeal in Smith (1968) Q.W.N. 50 and Smith No. 2 (1969) Q.W.N. 10. But Mr Hamlyn-Harris submitted that the principle of Grierson is inapplicable to this Court, exercising criminal jurisdiction, by reason of the passage of s. 8(1) (formerly s. 9(1)) of the Supreme Court of Queensland Act 1991 which reads:

"The Court has all jurisdiction that is necessary for the administration of justice in Queensland".

The corresponding provision in New South Wales, s. 23 of the Supreme Court Act 1970 has been treated as relevant to the question whether the Court of Appeal in that State has jurisdiction to grant a stay of interlocutory proceedings: Raybos Australia Pty Ltd v. Tectran Corporation Pty Ltd (No. 4) (1986) 6 N.S.W.L.R. 674 at 684, and to the question whether the Supreme Court may grant a "Mareva" injunction: Riley McKay Pty Ltd v. McKay [1982] 1 N.S.W.L.R. 264. In Sutton v. Warringah Shire Council (1985) 4 N.S.W.L.R. 124 at 131, 132, Young J., discussing the provision in an equity context, expressed the view that:

" . . . the Court is empowered to do whatever is necessary to administer justice in New South Wales and is not shackled by any old fetters that there may have been about doing justice in particular cases because of the old doctrine of causes of action at law or strict procedural rules of equity. . . . The impact of section 23 and the rules is that whenever this Court sees that there is a situation where, in the public interest, it should make a ruling then notwithstanding that under the former law they may have been in doubt as to standing to sue, the Court would be bound to hear the case because of its duty to do justice in all matters for the good of the people of New South Wales".

Riley McKay Pty Ltd v. McKay was referred to in the High Court in Jackson v. Sterling Industries Ltd [1987] HCA 23; (1987) 162 C.L.R. 612 at 617, 637. The former reference, in the reasons of Wilson and Dawson JJ., was followed by this remark:

"No relevant distinction is to be drawn between the inherent power of the Court and that bestowed by the section although, as the Court of Appeal pointed out, the section confirms the inherent power without increasing it".

The Court of Appeal did not in fact point that out (270), but expressed doubt as to whether there is a difference between s. 23 of the Supreme Court Act 1970 (N.S.W.) and the inherent jurisdiction of the Court. If the section was intended merely to "confirm" the inherent jurisdiction of the Court it seems to have achieved little or nothing. Reading the provision without the benefit of any elucidation by authority one would surely think it to be intended to supplement the Court's jurisdiction, not leave it unaltered.

The view that s. 23 has such a limited effect as was suggested in Jackson v. Sterling Industries has not I think prevailed. In Walton v. Gardiner [1993] HCA 77; (1993) 67 A.L.J.R. 485, the question arose whether the New South Wales Court of Appeal could under s. 23 of the Supreme Court Act 1970 stay proceedings pending before a certain tribunal. In the principal judgment, that of Mason C.J., Deane and Dawson JJ., their Honours referred to the judgments in the Court of Appeal and remarked:

"The starting point for each of their Honours was an acceptance of the jurisdiction of the Court of Appeal, in the exercise of its general supervisory powers under s. 23 of the Supreme Court Act 1970 (N.S.W.) to intervene in an appropriate and exceptional case to stay proceedings in the Tribunal." (490)

The Court also referred to the earlier decision of the Court of Appeal in Herron v. McGregor (1986) 6 N.S.W.L.R. 246 (see especially p. 252 per McHugh J.) and to the fact that the Court had there treated it as settled by the terms of s. 23 that the relevant supervisory jurisdiction existed. The principal judgment in the High Court then referred to the circumstance that the Court had refused special leave in Herron v. McGregor, and the Court declined to reconsider the point.

Section 23 subsequently came up for consideration again in the High Court in Reid v. Howard (1995) 69 A.L.J.R. 863 where the question was whether a certain order, held to infringe the privilege against self-incrimination, was properly made. The Court held that it was not, but made some remarks of present relevance about the basis of the jurisdiction:

"Neither the inherent power nor the completely general terms of section 23 can authorise the making of orders excluding compliance with obligations or preventing the exercise of authority derived from statute . . . the inherent power and the jurisdiction conferred by section 23 of the Supreme Court Act are to be exercised only as necessary for the administration of justice. Quite apart from the difficulties which the orders of the Supreme Court present for the administration of justice, to which reference has already been made, it is inimical to the administration of justice for a civil court to compel self-incriminatory disclosures . . . ". (871)

This passage tests the existence of a power said to rest upon s. 23 or the inherent power in accordance with the terms of that statute, rather than treating the section as adding nothing. In the present case it appears to me that, in a broad sense, reconsideration of the question which was formerly before the Court is "necessary for the administration of justice in Queensland"; unless the Court reconsiders its order, then an order based on a misapprehension of the effect of orders previously made with respect to the applicant will be treated as effective; there is also the problem of the supposed ambiguity in Derrington J's order, referred to below. Of course, the applicant has a possible remedy by way of application to the High Court, but that hardly seems to be a proper reason for holding the matter to fall outside s. 23.

The point is a narrow one and is whether where this Court disposes of a matter on the basis of a mistake with respect to the content of orders previously made by the Supreme Court, or indeed any court, it has jurisdiction in an appropriate case to correct its mistake. The case is not one where the error involved any disputed or disputable question of fact; it was merely as to the content of orders made by courts of this State. It is also to be noted that, according to a letter dated 6 October 1995 which is among the papers, the prison authorities are uncertain of the effect of the order of Derrington J the subject of the application refused on 4 October 1995. There is said to be a difficulty in determining whether his Honour meant the 18 months imprisonment he imposed to be cumulative upon the 2 year District Court sentence or the total sentences of 6½ years. There is no statute, or fundamental principle of law, standing in the way of making an order to meet these difficulties and it is my view that the matter is covered by s. 8 of the Supreme Court of Queensland Act 1991.

It is contended for the respondent that this Court should not impose upon the applicant any less severe sentence than did Derrington J; it is said that the total sentence of 8 years is not in the circumstances excessive. While the applicant is still a relatively young man, at 29 years, he has a bad history and has been to prison many times. It does not seem necessary to recount the details of his offences which have included property and drug offences as well as offences involving violence.

The offences presently in question were committed in November 1994 and the applicant was able to commit them because he had absconded in respect of the offences which ultimately came before the District Court, as explained above, in March 1995. The November 1994 offences were two: possession of methylamphetamine of a quantity exceeding that stated in the Third schedule and possession of a sum of money, $2,485, obtained from the commission of an offence defined in s. 6 of the Drugs Misuse Act. The drugs and money were found by a motel proprietor in a room occupied by the applicant which also had in it a sawn-off rifle and a sawn-off shotgun. The Court expressed the view on 4 October 1995 that there seemed little doubt that the applicant and some co-offenders were in the business of commercial sale of methylamphetamine and there is no reason to depart from that conclusion, nor indeed is there any reason to think that, considered in isolation, the sentence of 18 months imposed by Derrington J was excessive.

But Mr Hamlyn-Harris argues for the applicant that a period of about 3 months was spent in custody before the applicant was dealt with in the District Court on 10 March 1995. He says that this has never been taken into account in favour of the applicant because the custody had to do both with the District Court and Supreme Court offences. So, it is said, the total effective sentence should be regarded as being 8½ years rather than 6 years, being the basis on which this Court dealt with the applicant on 4 October. To that Mrs Clare, for the respondent, answers that the 3 month period of custody must have been taken into account when the applicant was sentenced, on 20 June 1995, to only 7 days imprisonment for breach of the Bail Act. That is possible, but is a rather speculative conclusion; it seems more likely that a very short sentence was imposed on 20 June because by then the applicant had already been sentenced to 6½ years imprisonment in the District Court.

I am therefore prepared to accept the contention that in the result the applicant has never had the three months custody taken into account, explicitly, in the fixation of the sentences totalling 8 years. That circumstance would not in itself justify this Court in exercising its discretion under s. 8 of the Supreme Court of Queensland Act 1991 in favour of the applicant; but it is relevant when considering the question whether any orders should be made in favour of the applicant, on re-consideration of the matter in consequence of the error by which the Court's previous treatment of the case was affected.

It does not seem to me right to lessen the head sentence of 18 months imposed by Derrington J, but in the whole of the circumstances I favour acceding to Mr Hamlyn-Harris' application to set a fresh parole date; I would advance that date by about a year.

There remains what is alleged to be an ambiguity in the order made by Derrington J. It is unnecessary to decide whether there is, strictly speaking, any ambiguity. But out of an abundance of caution, I would also order that the sentence of 18 months imposed by Mr Justice Derrington on 7 August 1995 be made cumulative upon all the sentences imposed in the District Court on 10 March 1995.

1. Order of this Court [delivered on 4 October 1995] in Appeal No. 364/95 refusing an application for leave to appeal set aside.

2. Application for leave to appeal against the sentence imposed by Mr Justice Derrington on 7 August 1995 granted.

3. Appeal allowed to the extent of recommending that the appellant be eligible for release on parole on 1 March 1998.

4. Further order that the sentence of 18 months imposed by Mr Justice Derrington on the appellant on 7 August 1995 be made cumulative upon all the sentences imposed in the District Court on 10 March 1995, resulting in total sentences of 8 years.

On 4 October 1995 the Court of Appeal refused an application by the present applicant for leave to appeal against an effective sentence of eighteen months imprisonment imposed in the Supreme Court. During the course of that appeal the Court of Appeal was erroneously informed by the Crown and proceeded on the basis that the effective total sentence being served as a result of the sentence in the Supreme Court and other sentences previously imposed in the District Court was six and a half years, whereas it was in fact eight years. The history of the various offences is that the applicant committed a number of offences of dishonesty in September 1992. Then on 5 November 1992 he committed a number of assaults. He was placed in custody for nineteen days for the assaults. He failed to appear for further hearings in respect of both series of offences and was eventually apprehended on 19 November 1994 when he was arrested for possession of methyl amphetamine of a quantity exceeding that in the third schedule and possession of $2485 from the sale of drugs. He remained in custody until 10 March 1995 when he was sentenced to four and a half years for the assault offences and two years on the offences of dishonesty. The sentences were to be served cumulatively. An appeal was dismissed on 16 May 1995 against the sentences for assault. On 7 August 1995 he pleaded guilty to the drug charges and was sentenced to eighteen months cumulative "with the sentences that you are already serving". As far as can be ascertained, the effective period of imprisonment that was already being served at the time of the Supreme Court sentencing proceedings was never specified definitively to the sentencing judge.

When the appeal against the cumulative sentence of eighteen months was heard by the Court of Appeal the Court was erroneously informed and proceeded on the basis that the effective total sentence being served in respect of all sentences was six and a half years whereas it was eight years. The application for leave to appeal, which was argued on the basis that the totality of the sentences was manifestly excessive, was refused.

The applicant has applied for an extension of time within which to reopen the application originally heard by the Court of Appeal on 4 October 1995. An application for extension of time to appeal in respect of all the sentences imposed in the District Court was not pursued and was refused at the hearing.

I agree with the reasons of Pincus JA for concluding that in a case of this particular kind, where the Court of Appeal has proceeded on an indisputably erroneous basis s.8 of the Supreme Court of Queensland Act 1991 enables the Court to reconsider the matter. In my view the question now before the Court is whether the sentence of eighteen months cumulative upon previous sentences totalling six and a half years is manifestly excessive. The sentences with which the Court is presently concerned arose from offences committed in three episodes. No complaint can be made that cumulative sentences were inappropriate. The only question is whether the imposition of eighteen months' imprisonment, which represents somewhat less than the applicant would have received, with his record, had the latest matters been dealt with as a single episode, results in a punishment which is manifestly excessive having regard to the overall criminality. In my view that proposition cannot be established. The applicant has a bad criminal history. The incident leading to his arrest for the offences in respect of which he now seeks leave to appeal involved a threat of serious violence, and he was in possession of firearms. Further, because the applicant was aware that the District Court sentences were cumulative, he cannot assert that he has had his expectation raised that he would receive parole three years after the imposition of the original sentences by reason of the erroneous assumption upon which this Court acted on the previous appeal. The Court did no more than find that, on the basis on which it considered the matter, the sentence imposed was not manifestly excessive.

There was also a submission that there was nothing to suggest that the period he was in custody between his apprehension for the offences in relation to which he had absconded and the drug offences and his being sentenced had been taken into account in imposing the sentences in the District Court. There was no obligation to do so (s.158, Penalties and Sentences Act). I am not persuaded that the applicant can reasonably expect any consideration in respect of that period, which was known to the District Court Judge at the time of sentence and which resulted from the applicant absconding. There is no principle that such a period must be specifically subtracted in a case of this kind.

In my opinion, leave to appeal should be granted but the appeal dismissed.

[1] (a) It is unnecessary in this proceeding to discuss the potentially wider power of a court or judge to rehear a proceeding after judgment, or to review, vary or set aside a judgment or order, if the judgment or order has not been perfected: see Smith v. N.S.W. Bar Association [1992] HCA 36; (1992) 176 C.L.R. 256, 265; Autodesk Inc v. Dyason [No. 2] [1993] HCA 6; (1993) 176 C.L.R. 300; Nintendo Company Limited v. Centronics Systems Pty. Ltd. [1994] HCA 27; (1994) 181 C.L.R. 134, 168-169.

(b) Nor is it necessary to discuss the principles by which a judgment or order which has been perfected which was obtained by fraud can be set aside although a separate action for that purpose might be required: see, for example, the passage quoted below from the judgment of Dixon J. in Grierson v. R. [1938] HCA 45; (1938) 60 C.L.R. 431, 435-436; McCann v. Parsons [1954] HCA 70; (1954) 93 C.L.R. 418, and the cases collected in The Australasian Meat Industry Employees Union v. Mudginberri Station Pty. Ltd. (1986) 65 A.L.R. 683, 688ff; cf Australasian Meat Industry Employees Union v. Mudginberri Station Pty. Ltd. (1986) A.T.P.R. 47, 748.

(c) Another matter which falls outside the present discussion contains the inherent or implicit power of an inferior court or tribunal established by statute with a limited jurisdiction: see, for example, John Fairfax & Sons Ltd v. Police Tribunal of N.S.W. (1986) 5 N.S.W.L.R. 465, 476-477 and other cases cited in J. v. L. & A. Services Pty Ltd [1993] QCA 89; [1993] 2 Qd.R. 380.

(d) Finally, it is unnecessary to refer to special considerations applicable either to orders made ex parte or to further orders in connection with the implementation of an order, even a final order: see, for example, Woodward v. Gaha (N.S.W. No. 50167 of 1994, Rolfe J., unreported, 28/9/1995).

[2] The previous refusal of leave to appeal was an interlocutory, not a final, order: Pedler v. Hunters Hill Municipal Council [1976] 2 N.S.W.LR. 411. In that case, the New South Wales Court of Appeal held that an order restraining a vexatious litigant from instituting any legal proceedings against a local authority without the leave of the Court was a final order, but a further order refusing leave to appeal was an interlocutory order (p. 412). See also Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 C.L.R. 423; Licul v. Corney [1976] HCA 6; (1976) 50 A.L.J.R. 439; Carr v. Finance Corporation of Australia Ltd (No. 1) [1981] HCA 20; (1981) 147 C.L.R. 246; Sanofi v. Parke Davis Pty Ltd (1982) 149 C.L.R. 147; Computer Edge Pty Ltd. v. Apple Computer Inc. (1984) 58 A.L.J.R. 512 (note); [1984] HCA 47; 54 A.L.R. 767; Bourke v. State Bank of New South Wales Ltd (Federal Court of Australia, 139/95, Full Federal Court, unreported, 13/3/1995).

[3] As to the principles applicable, see Mickelberg at p. 311.

[4] The Judicature Act 1876 is now relocated in Part 13 of the Supreme Court Act 1995.

[5] In Mickelberg, Deane J. remarked at p. 277 that, "... a general appellate jurisdiction to hear appeals was unknown to the common law." See also National Employers Mutual General Insurance Association Ltd. v. Manufacturers Mutual Insurance Ltd. (1989) 17 N.S.W.L.R. 223, 230-231, per Kirby P.

[6] There are special considerations applicable to the High Court of Australia. For example, it was held in Mickelberg that the High Court does not have the power to receive fresh evidence. On the other hand, the High Court is established by the Commonwealth Constitution and is the final appellate court for Australia: Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals from the High Court) Act 1975 (Cth); Australia Act 1986 (Cth); Cook v. Cook [1986] HCA 73; (1986) 162 C.L.R. 376. The second policy consideration referred to below, the prevention of injustice, accordingly assumes special importance: cf Wentworth v. Woollahra Municipal Council [No. 2] [1982] HCA 41; (1982) 149 C.L.R. 672, 683/4; State Rail Authority of New South Wales v. Codelfa Construction Pty. Ltd. [1982] HCA 51; (1982) 150 C.L.R. 29; Metwally v. University of Wollongong [No. 2] (1985) 60 A.L.R. 68.

[7] cf per Deane J., dissenting in Mickelberg at pp. 277ff, 289, 293.

[8] A further appeal lies to the High Court only with its special leave (Judiciary Act 1903 (Cth) sub-s. 35(2)), which since the creation of this Court has been granted in considerably fewer than 1% of the Court's decisions.

[9] Other provisions with respect to appeals to this Court (or comparable proceedings) which are not presently material are to be found in s. 673 of the Code, Part 2 division 3 and Part 9 of the District Courts Act, Chapter 9 Division 1 of the Justices Act, and various other statutes.

[10] This is a different power from the power of an appellate court, at the hearing of an appeal, to receive fresh evidence of pre-trial events (see, e.g., Mickelberg at pp. 273, 275, 301), or perhaps supervening events (see, e.g., Mulholland v. Mitchell (1971) A.C. 666; Doherty v. Liverpool District Hospital (1991) 22 N.S.W.L.R. 284; 290H; Hawkins v. Pender Bros. Pty. Ltd. [1990] 1 Qd. R. 135; and Barder v. Caluori (1988) A.C. 20, 41 (referred to by Mason CJ in Mickelberg), or to give effect in appropriate cases to changes in the law since the judgment appealed from was delivered: see Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 C.L.R., 73, 107H. Compare also R. v. Industrial Court of South Australia; ex p General Motors-Holden's Pty. Ltd. [No. 2] (1976) 43 S.A.I.R. 760; 1027; Eggins v. Brooms Head Bowling and Recreational Club Ltd. (1986) 5 N.S.W.L.R. 521.

[11] Wilde v. Australian Trade Equipment Co. Pty. Ltd. [1981] HCA 13; (1981) 145 C.L.R. 590.

[12] These provisions were reproduced in the Supreme Court Act of 1867, which is now relocated in Part 9 of the Supreme Court Act 1995.

[13] Sub-s. 8(1) of the Supreme Court of Queensland Act 1991 was then numbered sub-s. 9(1).