BETWEEN : RYAN NOMINEES PTY LTD (ACN 008 767 557)

Practice and procedure - Interlocutory orders in the course of a long trial management - When orders may be varied - Case turns on own facts - No new principles

First Appellant (First Plaintiff) : Mr D W McLeod & Ms L E Rowley

Third Appellant (Third Plaintiff) : Mr D W McLeod & Ms L E Rowley

Fourth Appellants (Fourth Plaintiffs) : Mr D W McLeod & Ms L E Rowley

Second Appellant (Second Plaintiff) : Mr D W McLeod & Ms L E Rowley

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Amatek v Botman (1995) 13 ACLC 1729

Brimaud v Honeysett Instant Print Pty Ltd, unreported; SCt of NSW (McLelland J); 19 September 1988

Cohen v McWilliam (1995) 38 NSWLR 476

Evans v Bartlam [1937] AC 473

Freehill Hollingdale & Page v Bandwill Pty Ltd & Anor [2000] WASCA 150

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Jess v Scott (1986) 12 FCR 187

Ketteman v Hansel Properties Ltd [1987] AC 189

Londish v Gulf Pacific Pty Ltd [1993] FCA 470; (1993) 45 FCR 128

Nominal Defendant v Manning [2000] NSWCA 80; (2000) 31 MVR 524

Pillinger v Ropework Services International Ltd, unreported; SCt of WA (Master Staples); Library No 7976; 5 December 1989

R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389

State of Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146

Tremeer v City of Stirling [2002] WASCA 281

1 MCKECHNIE J: This is an interlocutory appeal against a decision of Roberts-Smith J who is the Judge appointed under the long causes list to manage the litigation. The grounds of appeal raise three grounds, one of which was added by leave today (ground 1(a)). I will return to that ground shortly.

2 Ground 1(a) is an alternative to ground 1. It asserts that the "orders made on 9 August 2001 should not be disturbed without good reason". The principles for interfering with a perfected order are set out by Master Sanderson in Ansons Pty Ltd v Merlex Corporation Pty Ltd (2001) WASC 204 at 49 and are not in issue in this case. Indeed, they have been applied by Judges of this Court in other matters. Those principles are:

"(1) There is power to vary or discharge a perfected or entered order.

(2) The power should be exercised with care and only in the most unusual circumstances.

(3) If the perfected order has continuing operation and there is a change in the underlying circumstances which applied when the order was made, then the order can be varied or discharged to take account of those changed circumstances.

(4) In a circumstance where the substratum of fact or law underpinning the order has changed, the perfected order can be discharged or varied by a single Judge.

(5) The fact that the perfected order in question was made by consent and pursuant to an agreement between the parties does not in any way affect the power of the Court to vary or discharge the order."

3 Although not expressed directly by Master Sanderson, in my view, by implication, there is an overriding condition, namely the interests of justice in a particular case.

4 The effect of refusing leave to the Commission to rely on what is described as the historical evidence in this case will mean that the Commission will be unable to present any positive case at trial in relation to valuation evidence.

5 The Judge was, by reason of his involvement in the case in the long causes list, well aware of the history of the matter, in particular the commission's history of non-compliance with orders, and particularly orders made on 9 August 2001.

6 The grounds of appeal, both ground 1(a), and ground 2, in essence ,challenge the exercise of the Judge's discretion to allow the Commission to rely on that evidence. Ground 2 points to various matters about which it is complained that the Judge failed to place sufficient weight.

7 We have been assisted by full and comprehensive submissions in writing from both parties and by Mr McLeod's further submissions today. I am unpersuaded that the Judge misapplied the discretion given to him in the weighting of the various factors for and against the giving of leave to the Commission to adduce the historical evidence. It seems to me to be a matter fairly within his discretion and I am not persuaded that he exercised any error in so doing.

8 Ground 1 of the appeal reads that the orders made on 9 August 2001 are perfected orders and cannot be disturbed. The appellant points in particular to O 16 which states:

"A party who fails to provide or exchange evidence, witness statements or outlines of anticipated evidence in accordance with these directions shall not be permitted to rely upon that evidence to which they relate at trial."

9 It is submitted that this has created a right. The order from which no appeal has been taken has been perfected and the principles of res judicata or similar principles apply to that order. I am unable to accept the submission. In my view the orders, although expressed in peremptory terms, are nevertheless interlocutory orders made in the course of preparing a trial where rights will be determined. They do not of themselves give rights of a kind where res judicata would apply. Rather, I consider the correct approach is that as outlined by Master Sanderson in Ansons Pty Ltd.

10 This being so, I am unable to accept the submission that the orders are unable to be disturbed. Of course they should only be disturbed for good reason. It is plain from the decision that the Judge considered there was good reason. In view of the consequences that would flow in failing to make the order he did, I can understand why he made that decision. For those reasons I would dismiss this appeal.

11 BARKER J: I agree with those reasons and would also dismiss the appeal.