176 CLR 300
Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20
147 CLR 246
D'Orta Ekenaike v Victorian Legal Aid [2005] HCA 12
Source
Original judgment source is linked above.
Catchwords
176 CLR 300
Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20147 CLR 246
D'Orta Ekenaike v Victorian Legal Aid [2005] HCA 12
Judgment (5 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
BASTEN JA: I agree with Emmett JA.
MEAGHER JA: I agree with Emmett JA.
EMMETT JA: On 5 December 2014, for reasons published on that day, the Court made orders on several motions filed in connection with an appeal brought by Tyneside Property Management Pty Ltd, Namlot Nominees Pty Ltd and Mr Roy Haggis (the appellants). In two of the motions (the review motions), the appellants sought review of orders made by Sackville AJA on 29 November 2013 that the appellants provide security for the costs of the respondents to the appeal, Hammersmith Management Pty Ltd and Roche Group Pty Ltd (the respondents). In another motion (the dismissal motion), the respondents sought dismissal of the appeal by reason of the failure of the appellants to provide security in accordance with the orders made by Sackville AJA.
The effect of the orders of 5 December 2014 was that the review motions be dismissed because the Court held that there was no error on the part of Sackville AJA in concluding that the order for security would not frustrate the appeal. Sackville AJA had proceeded on the basis that the appeal had a reasonable prospect of success, but without addressing that question. Nevertheless, because of a change in circumstances, indicating that the appellants could not provide security and would not have legal representation, the Court examined the prospects of success, on the basis of the material then available. The Court concluded that the appeal as formulated did not have reasonable prospects of success and therefore confirmed the order for security and, accordingly, made the orders claimed in the dismissal motion. However, the Court stayed those orders in order to afford the appellants a further opportunity of providing security.
On 19 December 2014, the appellants filed a further notice of motion (the amendment motion) seeking orders that:
The orders of 5 December 2014 be set aside;
The appellants be granted leave to file an amended notice of appeal;
The solicitors acting for the respondents withdraw from the case.
The amendment motion was supported by an affidavit sworn on that day by the third appellant, Mr Roy Haggis. Mr Haggis annexed to his affidavit, in addition to the judgments, transcripts and correspondence relating to the hearing of the review motions and the dismissal motion, a document of some 25 pages consisting of submissions in support of the orders sought in the amendment motion. The submission document addresses six topics as follows:
Orders of Sackville AJA of 29 November 2013;
The dismissal motion;
Change of circumstances - extension of time;
Merits of appeal evidence;
The first of the review motions; and
Explanation for the second of the review motions.
It is necessary to deal with each of those sections separately.
[3]
Submissions on the amendment motion
The first section of the submission appears to be no more than further canvassing of the matters raised in the review motions. The submission appears to be a complaint that the Court did not have regard to all of the submissions made on behalf of the appellants.
The second section of the submissions complains that there has been no consideration of an allegation of fraud made against the respondents' solicitors by the appellants. No such allegation had been made in the notice of appeal that was filed. On the other hand, further grounds of appeal had been referred to in the course of argument by the appellants. Nevertheless, no formal application had been made for leave to amend prior to the amendment motion.
In the third section of the submissions, the appellants complain about the conduct of their own solicitors in relation to the proceedings at first instance and the preparation for and conduct of the hearing before Sackville AJA. In the Court's reasons of 5 December 2014, the change of circumstances relating to the appellants was taken into account, namely, that the appellants are no longer represented by lawyers. For that reason, the Court had regard to the merits of the appeal as disclosed in the existing notice of appeal in order to consider the question of whether security should be ordered. The Court concluded that there could be no confidence in the appellants' prospects of success in the appeal as presently formulated, and that, consequently, an order for security should be made. It is not entirely clear what complaint is being made in the third section about the orders of 5 December 2014.
The fourth section of the submissions addresses what may be the only matter of substance, namely, whether the appellants should be given leave to file an amended notice of appeal and whether, assuming such leave were given, the prospects of success in the appeal would be such that the requirement to provide security would result in significant injustice to the appellants. To date, no draft amended notice of appeal has been provided. However, the appellants have produced a document entitled "Draft of Issues for the Amended Notice of Appeal". That document does not adequately state grounds of appeal. It contains seven paragraphs, each of which contains numerous references to what appear to be paragraphs of the judgment at first instance and the evidence at first instance. The seven paragraphs appear to be detailed complaints about the findings made by the primary judge. No attempt is made to explain how those findings bear on the ultimate conclusions reached by his Honour.
It is desirable to set out the paragraphs by way of indication of their unsatisfactory nature as grounds of appeal. The paragraphs are as follows [references removed]:
1. In the Court Book of documents prepared by [the respondents' solicitors], the document shown as Annexure "T" in the affidavit of Roy Haggis dated 2 May 2003 is not the same document as Annexure "T" attached to the affidavit. The document is at variance with paragraphs 26 to 38 in the affidavit of Damian Roche dated 4 November 2004;
2. In judgment [59], his Honour states: "A final version was printed", in reference to the profit deed and in judgment [61], "A copy of the executed Management Agreement and the Profit Deed", which is consistent with the Damian Roche evidence of one signing page in the profit deed, printed at Roche offices. However, in the Court Book there are three versions of the profit deed with original signatures, consistent with the evidence of paragraph 72 of the affidavit of Roy Haggis dated 26 August 2004;
3. His Honour erred in stating that no other documentary evidence supported Mr Haggis's evidence that 12.1(f) had been struck through by Mr Oliver and initialled by all present;
4. In judgment [61], his Honour stated that Roy Haggis and John Oliver's only contribution to the development was their management expertise, but he excluded the third participant, Fred Boswell, who had no involvement in the management. Fred Boswell assigned a percentage of his profit in the project to Fay & Cannon for arranging funding;
5. His Honour erred in stating that Roy Haggis altered a set of minutes after 7 April 2009. The defendants handed up, without notice, the set of minutes at trial, which were different to the set annexed to the Roy Haggis affidavit. John Oliver, former Tyneside director, handed Tyneside computer server tapes and a disk containing Tyneside's documents to [the respondents' solicitors] in March 2006. The set of minutes, brief and fax sheet were on the disk. The Fay & Cannon 23 March 1999 [sic] is incongruous with other Roy Haggis contemporaneous documents;
6. His Honour erred in stating that John Oliver was not wholly aligned with the Roche Group; on the Lot 107 issue - John Oliver reversed his evidence; in the Masterplan issue - John Oliver reversed his evidence; in the Resignation issue - John Oliver transferred Maryann Florence Tyneside 20 shares - 10 to himself and 10 to Roy Haggis, four days prior to Hammersmith Board Meeting, and changed his evidence of what Roy Haggis said at the 28 January 2003 meeting;
7. His Honour excluded the Roche Group's timed non-payment of Delamere Homes Pty Ltd construction contract to coincide with the termination of the profit deed and management agreement, the removal of Roy Haggis as director of Hammersmith and statutory demands for the Tyneside and Namlot loans.
Even if leave were granted to amend the notice of appeal by including that material as grounds, there would be no basis for concluding that the appeal had any greater prospects of success than under the existing notice of appeal. It is not apparent how the errors alleged, even if made out, would sufficiently impugn the primary judgment to warrant appellate intervention.
In the fourth section of the submissions, the appellants also complain about the failure of the Court to have regard to what is described as "Schedule 6", which is contained in a bundle of documents handed up to Court during the hearing on 12 June 2014. The submission asserts that Schedule 6 provides evidence that the respondents have prosecuted an unmeritorious case and have caused the appellants' impecuniosity.
Schedule 6 consists of some 34 pages consisting of what appears to be a detailed narrative of the events that were in issue before the primary judge. The document was brought into existence after the judgment of the primary judge, in reply to a submission by the respondents in support of their security for costs application before Sackville AJA. It does not purport to be taken from the evidence before the primary judge. It has the appearance of a narrative that might be provided to a trial judge if an order were made for a re-trial. It can have no bearing on the question of whether there are any prospects of success for the appeal, either as presently formulated or as amended to take account of the matters contained in the "Draft Issues for the Amended Notice of Appeal" document.
Another complaint made in the fourth section of the submissions is that the Court failed to have regard to the fact that the appellants were not given leave to file "an amended statement of claim". That may have been intended as a reference to an amended notice of appeal. The submission complains that the Court heard evidence that the appellants were not given the opportunity "to view the notice of appeal prior to filing", and asserts that the appellants' evidence on the merits of the appeal differed significantly from that of their lawyers and counsel, who had ceased to act for them on 31 January 2014. They complain that the Court failed to assess "the appellants' significant tendered merits of appeal evidence".
The fifth section of the submissions complains about the Court's treatment of a prayer for relief in the review motions that the appeal be upheld on a summary basis. It is difficult to understand the complaint.
The sixth section of the submissions appears to be no more than an explanation as to why the second of the review motions was filed on 20 March 2014. It has no bearing on the relief claimed in the amendment motion of 19 December 2014.
[4]
Conclusion
The application to this Court was concerned with an interlocutory order requiring that the appellants provide security for costs. Although there was a question as to whether the grounds of appeal had reasonable prospects of success, determination of that question did not involve resolution of the substantive issues in the proceedings, even if it were held (as it was) that the grounds did not have reasonable prospects. Although the effect of the Court's orders (assuming they are not reopened and that security is not provided) is the termination of the appeal, the orders themselves are nevertheless classified as interlocutory: Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; 147 CLR 246 at 256 (Mason J). It is generally understood that the constraints on setting aside or varying a judgment or order once it has been entered do not apply to interlocutory orders: see Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3). However, it is not necessary to decide whether the orders made on 5 December 2014 were interlocutory or not, because the appellants filed a motion seeking to vary them within 14 days, in accordance with r 36.16(3A). The Court may therefore determine the matter as if the judgment or order had not been entered..
It is well established that courts will exercise great restraint in the re-opening of a case following full argument. In particular, the jurisdiction to set aside or vary a judgment will not be exercised simply for the purpose of re-agitating arguments already presented to the court (Autodesk Inc v Dyason (No 2) [1993] HCA 3; 176 CLR 300 at 303). This is consistent with the principle of finality that "a central and pervading tenet of the judicial system is that controversies, once resolved, are not to be re-opened" (D'Orta Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1 at [34]). Even in respect of interlocutory orders, the courts will decline to entertain applications to vary orders which dispose of severable issues, absent a change of circumstances or other justification consistent with these general principles.
The respondents have not been invited to make any submissions in response to the amendment motion, having regard to the unsatisfied order for security for costs. On the material contained in the submissions and the other annexures to the affidavit sworn by Mr Haggis, no basis has been established for concluding that leave to file an amended notice of appeal should be granted. No basis has been shown for concluding that the orders of 5 December 2014 should be varied because the appeal has some prospects of success. In substance, the amendment motion seeks to re-agitate, impermissibly, the same evidence and arguments that were before the Court and that led the Court to come to the conclusion that it did in its judgment of 5 December 2014. The submissions do not raise any matter that should lead to the re-opening of the motions that were disposed of on 5 December 2014.
The amendment motion should be dismissed. Since the respondents have not been required to respond to the amendment motion, there should be no order as to the costs of that motion.
[5]
Amendments
13 March 2015 - Removal of words "Decision under Review" from above "Judgment".
13 March 2015 - Coversheet - amendments made to areas caught outside the judgment template prior to publishing.
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Decision last updated: 13 March 2015