PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING
ASIDE JUDGMENTS AND
ORDERS – GENERAL PRINCIPLES – where a trial and unsuccessful appeal
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTINGASIDE JUDGMENTS ANDORDERS – GENERAL PRINCIPLES – where a trial and unsuccessful appealwere conducted – wherethe defendant filed for special leave to the HighCourt but discontinued after entering into a deed of settlement with theplaintiff– where the conditions of the deed agreed upon the payment of alesser amount to the plaintiff than ordered at trial, withthe plaintiffagreeing to forever abandon entitlement to the gap – where the partiesfiled a request for a consent order ofthe Registrar to set aside orders of thetrial judge – where the Registrar refused – where the defendantfiled an applicationby consent to seek the order on the papers – wherethe parties placed reliance on r 667 Uniform Civil Procedure Rules– where finality considerations apply – whether r 667 applies– whether the Court has jurisdiction
L Shaddock and Associates Pty Ltd v Parramatta City Council (No 2)
[1982] HCA 59
[1983] 151 CLR 590, cited
Matton Development Pty Ltd v CGU Insurance Limited (No 2) [2016] QCA
285, cited
Permanent Trustee Co (Canberra) Ltd (Executor Estate of Andrews) v
Stocks and Holdings (Canberra) Pty Ltd (1976) 15 ACTR45, cited
Trappando Pty Ltd v Sunshine Group Australia Pty Ltd [2023] QSC 87,
cited
Uniform Civil Procedure Rules r 667
Judgment (12 paragraphs)
[1]
[1] The parties to concluded litigation have tried to return the case via today's listed application to seek an order materially altering the final judgment of this Court. They do so for no reason other than their own agreement to such an order.
[2] Their use of the Court's valuable time and resources in this way is purportedly justified by reliance on r 667(2)(e) Uniform Civil Procedure Rules. That rule provides:
[2]
"The Court may set aside an order at any time if - ...
[3]
(e) the party who has the benefit of the order consents."
[4]
[3] Reliance on the rule in the circumstances of this case on the part of the party pressing the application is misconceived.
[4] As to those circumstances, Trappando was appointed by a so-called Form 6 Appointment as Agent for the sale of Sunshine Group's property. A dispute arose over Trappando's entitlement to an agent's commission. Trappando filed a claim, and Sunshine Group counterclaimed. The trial was heard in the Cairns Supreme Court before the Chief Justice last year. Her Honour gave judgment for Trappando and dismissed the counterclaim - see Trappando Pty Ltd v Sunshine Group Australia Pty Ltd[2023] QSC 87.
[5] Her Honour's judgment orders, finalised on 18 May 2023, included:
[5]
"(1) The defendant pay the plaintiff the sum of $1,650,000 plus interest of $139,241.09 ...
[6]
(3) The defendant pay the plaintiff's costs on the standard basis."
[7]
[6] Sunshine Group appealed the decision in the Court of Appeal. The appeal was dismissed - see Sunshine Group Australia Pty Ltd v Trappando Pty Ltd[2023] QCA 214. Sunshine Group filed an application for special leave in the High Court but discontinued it after entering into a deed of settlement with Trappando on 22 December 2023.
[7] The deed recorded the parties' agreement to forever release and discharge each other from, amongst other things, all entitlements, liabilities, costs and expenses arising out of or in any way related to Trappando acting for Sunshine Group in respect of the sale of the property and in respect of the Form 6 appointment. The conditions of the agreement required the payment of a lesser amount than order (1) of the Chief Justice, with Trappando agreeing to forever abandon any entitlement to the gap. The conditions also required payment of various categories of costs specified in some detail.
[8] Other conditions included the discontinuance of the High Court proceeding and Trappando's cooperation in Sunshine Group taking steps aimed at procuring the consent order now sought.
[9] The steps involved Trappando and Sunshine Group executing and filing a request for a consent order of the Registrar that orders (1) and (3) of the Chief Justice of 18 May 2023 be set aside. In the event the Registrar declined to make such an order - and she did decline - the deed provided:
[8]
"...Sunshine Group may elect to either apply to the Supreme Court for the consent order (before a Judge) or discontinue the proposed consent order. In the event that Sunshine Group elects to bring the matter before a Judge, Trappando will consent to the order, subject to Sunshine Group reimbursing Trappando's legal costs on an indemnity basis."
[9]
[10] Sunshine Group did elect to bring the matter before a Judge and Trappando did consent to the order now sought on the papers in the application before me this morning.
[11] This satisfies the parties' obligations under their deed, which did not make it a condition that the Court, in turn, make the order consented to by the parties. To remove doubt, even if it had, that would be no reason for the Court to make such an order. The parties have every right to contract as between each other separately to the Court's processes, but, were they to have made their deal dependent on the outcome of the Court's decision, that fact could not, of itself, dictate what decision that Court must make. This heralds the point that there is no evidence before me as to why the order of the Court is necessary.
[12] Of course, there are many instances in the life of litigation passing through our Court where the Uniform Civil Procedure Rules are deployed to apply for the Court's orders by consent, including orders setting aside orders previously made. Many such applications go so obviously to the logistical management of the case before the Court as to require no or little deliberation for them to be made. Others may require closer scrutiny, for instance, where the Court is concerned by a failure to have complied with past orders or where the proposed orders appear to jeopardise rather than enhance the effective management of the litigation before the Court.
[13] The rules are designed to regulate the orderly litigation of cases passing through our Court, not cases like this one, which has well and truly left it. It may be accepted the words "at any time" in r 667(2) disavow any temporal limitation on the setting aside of an order "if the party who has the benefit of the order consents". However, it remains a matter for the Court to decide whether it still has jurisdiction in the matter and, if so, whether it ought exercise the discretion conferred by r 667(2)(e).
[14] The exercise of that jurisdiction and discretion is inevitably informed by considerations of finality. The general rule based on public interest in the finality of litigation is that the Court has no jurisdiction to recall, vary or reconsider a matter after it has ended judgment. In articulating that well-established rule in Permanent Trustee Co (Canberra) Ltd (Executor Estate of Andrews) v Stocks and Holdings (Canberra) Pty Ltd , 47-48. Brennan J. noted some exceptions to it, namely:
[10]
(2) deploying the Court's inherent jurisdiction to ensure its procedures do not affect injustice; or
[11]
(3) the overriding circumstance that the judgment has been obtained by fraud or a void or voidable agreement.
[12]
[15] It is not suggested any of those exceptions arise here. The slip rule is another exception. It reflects the inherent jurisdiction of a Court to correct an error in a decree or order arising from a slip or accidental omission or the inadvertence of a party's legal representative - see L Shaddock and Associates Pty Ltd v Parramatta City Council (No 2)[1982] HCA 59; [1983] 151 CLR 590, 594.
[16] The only decision to which Sunshine Group's written submissions refer, in which a Court has deployed r 667(2)(e), after a Court has apparently concluded the decision of a case, is Matton Development Pty Ltd v CGU Insurance Limited (No 2)[2016] QCA 285. There, the Court of Appeal set aside and substituted some orders it had made in allowing an appeal. Its orders had required the payment of certain sums in quantums it wrongly understood had been agreed between the parties. The reliance upon r 667(2)(e) in those circumstances was scarcely controversial, in as much as the purpose of the order was to correct an error in understanding as to what the parties had agreed on. That error occurred when the litigation was before the Court and could affect injustice if not corrected.
[17] Deploying the reach of r 667(2)(e) beyond a time of apparent conclusion of the litigation before the Court of Appeal (albeit before the filing of orders) was uncontroversial given the occurrence of such a misunderstanding during the litigation. No such occurrence has been identified in respect of the present case.
[18] There is no suggestion of any event occurring in the course of the litigation before the Chief Justice giving rise to some form of error which could result in injustice if not corrected. No reason whatsoever has been advanced as to why, despite the powerful countervailing consideration of finality, this Court should be drawn into exercising a discretion to make the orders sought. Indeed, there being no relevant exception enlivening the Court's jurisdiction to make orders in a case in which final judgment was given long ago, I conclude the Court's jurisdiction to even contemplate exercising the discretion sought has not been enlivened.