Practice and procedure - Review of Full Court's earlier decision - Constitution of court - Coram - Turns on own facts

1 ANDERSON J: I have had the advantage of reading in draft the reasons to be published by Wheeler J. I agree with them and have nothing to add.

2 WHEELER J: These are my reasons for dismissing the appellants' application that the court review its decision delivered on 7 December 2001 dismissing an appeal from a decision of Master Bredmeyer given 30 November 1999 in which the learned Master ordered summary judgment against Mr and Mrs Rayner. It is convenient first to consider briefly the court's jurisdiction to engage in such an exercise.

3 It appears that only days after the delivery of the Full Court's decision, the appellants filed a motion seeking to have the court review its decision. No orders have been extracted and there is therefore no perfected order. The questions that arise in relation to such an application have recently been discussed by the Full Court of South Australia in McAdam v Robertson [1999] SASC 169; (1999) 73 SASR 360 and [1999] SASC 169. I am entirely in agreement with the reasoning in that case. The conclusions reached were that the Full Court has power to re-open its previous decisions. The jurisdiction is an exceptional one, and is to be exercised having regard to the public interest in maintaining the finality of litigation. It is of particular relevance to this case to note Doyle CJ's observation, with which I agree, that " ... the jurisdiction is not exercised to enable a party to improve upon the argument that it has put, or merely to demonstrate that a decision is wrong. [par 38]".

4 An application of this kind should ordinarily be made to the Full Court as originally constituted, but may be entertained by the Full Court differently constituted if there is good reason to do so. Only Anderson J of the present coram was a member of the original court. It is not practicable to assemble the original coram at any date in the near future, Einfeld AJ having left Western Australia and having other commitments. The court therefore, with the concurrence of Mr Rayner, considered it appropriate to deal with the application rather than adjourn to some date at which the original coram might be convened.

5 As I understood it, Mr Rayner's complaint in relation to the decision which the appellants sought to review had a number of elements. The first, and that upon which he particularly appeared to rely, was that the court had had regard to the wrong documents in making its earlier decision. He alleged that it was clear from the court's decision that it had had regard to his grounds of appeal dated December 1999, rather than the document headed "Grounds of Appeal" filed by him on 16 July 2001. He argued that there was a material difference between the two and that the

court's reliance on the earlier, rather than the later, document meant that he had not been fairly heard. He further alleged, as I understood it, that the decision of the Full Court was in any event plainly in error in its recital of the law. He at times appeared to make, and at other times appeared to resile from, a proposition that the Full Court may have been not biased against him, but "disaffected" with him, by reason of certain somewhat intemperate references to the Master which appeared in the earlier of the two documents.

6 There is a short and technical answer, and a somewhat longer and more complex answer, to Mr Rayner's argument concerning the two documents. Both, in my view, lead to the same conclusion.

7 The short answer to the contention made by Mr Rayner is that on 18 June 2001 orders were made, apparently at Mr Rayner's request, by Wallwork J, concerning the conduct of the appeal. The orders included an order that appeal books be dispensed with and that the documents to be referred to in the appeal "are those set out in draft appeal book index handed up by the appellant on 18 June 2001". This index referred to the earlier of Mr Rayner's documents.

8 It appears that subsequent to that order, on 5 July 2001, in circumstances which cannot be discerned from the court record, Mr Rayner obtained leave from a Master to amend his notice of motion for appeal. It appears from the application which he made that the basis upon which he sought such an order was that the earlier document was only an "outline" grounds of appeal and that he wished to file fuller documents. There is no suggestion in the papers filed by Mr Rayner, or in the record of the Master, that it was sought to substitute a document which was significantly different. Apparently in reliance on that order, Mr Rayner filed the document headed "Grounds of Appeal" and dated 16 July 2001.

9 As a matter of jurisdiction, I am unable to discern how a Master could discharge or vary the order previously made by Wallwork J. It is true that the jurisdiction of Judge to permit amendment of a notice of motion in respect of an appeal, prior to the listing of the appeal for hearing, may be exercised by a Master (O 63 r 18). However, I would not see this power as being able to be exercised where a Judge had already given a specific direction, apparently pursuant to s 61 of the Supreme Court Act, as to the matters which may be referred to for the purpose of the hearing of the appeal. Such an order is, pursuant to that section, able to be discharged or varied by the Full Court. No application was made by Mr Rayner to discharge or vary the order of Wallwork J, nor did he even refer at the hearing to the later grounds of appeal (no doubt under the mistaken belief that it would be before the court pursuant to the order of the Master).

10 However, even if one assumes the validity of the Master's order, and assumes that the Full Court should have had reference to the "Grounds of Appeal" document, it is my view that there is no material difference between the two documents. There appear to be in the earlier document three principal complaints of error on the part of the Master. The first deals with the relationship between the ANZ Banking Group, the present respondents, and the former Town and Country Building Society. This is to be found also in the "Grounds of Appeal" document, particularly at grounds 1 to 1.iv. Second, an error on the Master's part is alleged in that he found the appellants' account of events "inherently incredible". This appears in the earlier document at pars 13 - 15, and in the later document, particularly at grounds 1.v through to 2.ii. Third, the earlier document alleges that the Master was biased, and that that bias is demonstrated by his comment that the concept of unconscionable conduct is "not as wide as the ocean". This is found in the later document at ground 2.v, but without any reference to the allegation of bias.

11 The later document does contain a complaint of error on the Master's part in relation to a limitation point which is not in the earlier document. I do not see this as a material issue. The context of that reference was that the Master was noting that the Rayners had not attempted to take action against the respondents for misleading and deceptive conduct and that the time within which such action could have been taken had expired. That was one of a number of matters to which the Master referred in finding that the Rayners' account of the events which had occurred was inherently incredible. There is no suggestion in the Master's decision that he regarded it as not open to the Rayners, because of the passage of time, to raise the various defences of unconscionable conduct or misleading and deceptive conduct which they sought to plead. In addition, there was in the later document a general assertion of "denial of natural justice" but this appeared to relate to the appellants' attempts to obtain discovery of a variety of documents from the respondents. As the Full Court pointed out, the question of discovery logically only arose if there was some material suggesting that summary judgment should not be entered, so that there would be an action on foot in which discovery might be sought.

12 In addition, in his oral argument at the hearing of the appeal, Mr Rayner described as the "nub of the case" his allegations that the appellants were under great pressure from the respondent at the time at

which the security in question was entered into. It is not, with respect to the appellants, easy to discern from the various affidavits filed on their behalf precisely what this "pressure" consisted of. There are a great many generalised allegations of a "scam" of some sort in which the respondent was alleged to have participated, and evidence in support of that allegation strayed at times very far from the subject matter of this claim; for example, there is a detailed affidavit which relates, so far as I can discern, primarily to the conduct of a particular person in relation to the repossession of motor vehicles. So far as I can discern, there is no motor vehicle in issue in this action. However, the Full Court characterised the conduct in question as simply "seeking payment from Mr Rayner of [a] Visa account debt" and using perhaps "forceful measures to persuade [the Rayners] to pay what is due or provide security for the debt" (emphasis supplied). There is nothing in that finding or in the discussion surrounding it in the reasons of the Full Court which provides any basis for the submission that there has been a "misapprehension in a significant respect as to the facts or the law" (McAdam v Robertson per Doyle CJ at [38]). Rather, in his argument in relation to this issue, it appeared to me that Mr Rayner was seeking to persuade this Full Court that the earlier decision was one in relation to which it should change its mind. That is not the purpose of an application for review of this kind which, as I have noted, is an exceptional proceeding. It may also be relevant to note that in argument before us, Mr Rayner appeared to take the view that the reasons of the previous Full Court condoned violent methods of debt recovery. It did not; "forceful" means only "vigorous" or "effective" (Macquarie Dictionary).

13 For the reasons which I have given, I formed the view that the application to review should be dismissed. It followed as a matter of logic that there should be no stay pending any such review. So far as the application for special leave to appeal is concerned, the reasons which I have outlined above were the basis upon which I formed the view that there was no reasonable prospect of success in such an application and that the court should not take the exceptional course of granting the Rayners a stay pending such an application although, as I noted at the time of hearing, it remains open for them to seek such a stay from the High Court should they wish to do so.

14 MILLER J: I have had the benefit of reading in draft the reasons published by Wheeler J. I am in agreement with those reasons and have nothing further to add.