Vasile Nan v Andreas Van den Berg and ors - [2004] NSWIRComm 361 - NSWIRComm 1997 case summary — Zoe

NSWNSWIRComm

Vasile Nan v Andreas Van den Berg and ors

[2004] NSWIRComm 361

Industrial Relations Commission (NSW)|1997-02-21|Before: Kavanagh J, Haylen J, Staunton J, Cahill VP, Peterson J, Cahill J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1997-02-21

Before

Kavanagh J, Haylen J, Staunton J, Cahill VP, Peterson J

Source

Original judgment source is linked above.

Judgment (47 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Vasile Nan v Andreas Van den Berg and ors [2004] NSWIRComm 361 PARTIES : Vasile Nan v Andreas Van den Berg and ors FILE NUMBER: IRC 6240 of 2003 CORAM: Kavanagh J; Haylen J; Staunton J CATCHWORDS : Application for leave to appeal and appeal decision to dismiss Notice of Motion - Motion to join party to orders under s 275 of the Industrial Relations Act 1991, alternatively to join party to proceedings after orders perfected - evidence led as to wife's interest in business of the respondents against whom orders stand - enforcement of judgment frustrated - respondent company deregistered - individual respondent's assets in joint names or liquidated - power of Full Bench of Commission in Court Session to grant orders sought - application effectively to re-open original case after orders entered - finality of decision - no error - applicant bound by conduct of original proceedings - invitation to join wife in original proceedings declined by appellant - leave to appeal refused Autodesk Inc v Dyason (No 2) (1993) 176 CLR 30 Bailey v Marinoff (1971) 125 CLR 529 Blair v Curran (1939) 62 CLR 464 Caltex Petroleum Pty Ltd v Harmer (1999) 99 IR 264 at 269 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1987-1988) 165 CLR 268 Fairfax Publications Pty Ltd v Abernathy [1999] NSWSC 820 House v The King (1936) 55 CLR 499 Metwally v University of Wollongong (1985) 60 ALR 68 Nan v Van den Berg & anor (unreported, 21 February 1997, Cahill VP, Ct 1140 of 1996 CASES CITED : Peipkorn v Caroma Industries Pty Ltd [2002] FCA 182 Perrott v Xcellenet Ltd (1998) 84 IR 255 at 265 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Rogers v Queen (1994) 181 CLR 251 State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 Venkata's Case (1886) 11 App Cas at 663-664 Walton v Gardiner (1992) 177 CLR 378 at 393 Wentworth v Wentworth [1999] NSWSC 638 WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2002) 124 IR 59

[7]

Matter No. IRC 6240 of 2003 Vasile Nan v Andreas Van den Berg and ors. Application by Vasile Dan to extend time to appeal and leave to appeal and appeal against the judgments of Justice Cahill and Justice Peterson given on 21.2.1997 and 18.9.2003 in Matter No CT 1140 of 1996 JUDGMENT OF THE FULL BENCH [2004] NSWIRComm 361 1 The appellant, Vasile Nan, applies for leave to appeal, and if leave is granted appeals a judgment of Peterson J of 18 September 2003, pursuant to ss187 and 189 of the Industrial Relations Act 1996. BACKGROUND 2 On 31 May 1996, the appellant brought proceedings under s275 of the Industrial Relations Act 1991 against Andreas Van den Berg ("the first respondent"), Range Transport Pty Ltd ("the second respondent") and Mountain Bulk Haulage Pty Ltd. The appellant discontinued proceedings against the third respondent, Mountain Bulk Haulage Pty Ltd, on 25 September 1996. 3 On 21 February 1997, Cahill VP delivered a first instance judgment in favour of the appellant and against the first and second respondent. The judgment provided for payment in the amount of $53,441.75, together with interest calculated at the statutory rate as from 2 March 1995 payable by the first and second respondents, jointly and severally. There was also an order made in respect of costs. (Nan v Van den Berg & anor (unreported, 21 February 1997, Cahill J, VP, CT 1140 of 1996). 4 The appellant was unsuccessful in his attempts to enforce the judgment of Cahill VP against either the first and or second respondents. While the appellant has taken a number of steps to enforce the orders of the Court, by the time the order was entered the second respondent, Range Transport Pty Ltd , had ceased trading and has since been deregistered. The first respondent, Mr Van den Berg, retired and has no assets except for a home jointly owned with his wife. The appellant feels frustrated by these events and, in effect, asserts that the respondents have arranged their affairs so as to frustrate satisfaction of the orders made by the Court. On the application for leave to appeal and appeal, the respondents submitted no evidence to explain the financial circumstances that left the orders of the Court unsatisfied. That omission may have added to the appellant's suspicion but the evidentiary position was not advanced beyond that state.

[9]

THE JUDGMENT 6. On 18 September 2003, the Motion came before Peterson J. It is noted that by the time the motion was heard, the second respondent had been deregistered. In dismissing the Motion, his Honour stated: 5 I have now on three occasions sought to deal with the motion, which is opposed by the existing respondents and by Mrs Van Den Berg. 6 On 22 May 2003 Mr Collinge, solicitor, appeared for the applicant, at which time I expressed some concern about the nature of the application and the power of the court to grant the relief which the motion sought. On 3 July 2003 the matter was again dealt with and then stood over to enable Mr Nan to obtain legal representation, his former representation then having withdrawn. 7 Today Mr Isaksen, solicitor, has appeared for the applicant and advanced arguments in support of the motion. Whilst I am fully appreciative of the dilemma which has faced Mr Nan in pursuing what he no doubt sees as his rightful entitlement in executing the orders of Justice Cahill, the question before the Commission now is whether the court can either amend the orders of Justice Cahill or amend the original application under s 275 by adding a further respondent. 8 No argument has been able to be advanced on behalf of the applicant which would persuade me that the court presently has the power to do as the motion seeks. Because of the limited argument which has been advanced against the motion I do not intend to elaborate any further on concerns which I have felt about the matter. 9 It seems to me to be necessary that the Commission order that the motion be dismissed, thereby bringing to an end this attempt to, as it were, revive the proceedings. I so order: Vasile Nan v Andrew Van den Berg & Ors [2003] NSWIRComm 322. 7 On 2 March 2004, Kavanagh J on delegation from the Full Bench, ordered Mrs Elfriede Van den Berg, be joined as a respondent to the appellant's application for an extension of time and for leave to appeal and to appeal, the ex tempore judgment of Peterson J, particularly to allow Mrs Van den Berg to be heard on these issues and proposed orders. On 16 March 2004, Kavanagh J granted an extension of time for the application for leave to appeal and appeal.

[34]

When, for that purpose, is judgment or an order entered? A policy of the finality of litigation underpins our system of law: Bailey v Marinoff (supra) per Gibbs J at 539. Entry of judgments or orders in the Registry of the Court achieves this finality by brining the litigation to an end: see Holtby v Hodgson (1889) 24 QBD 103 at 107; Antoniadis v Ramsay Surgical Ltd [1972] VR 323; Tripp Ltd v Henderson Investments Pty Ltd (1990) 101 FLR 261. 'Entering' (or 'authenticating' as it is sometimes known in other jurisdictions) judgment in the case of a Court of Record is the formal process by which the judgment or orders of the Court are 'perfected' by being drawn up as a record of the Court; see Bailey v Marinoff per Barwick CJ at 530. The judgments and orders of Courts of Record are not perfected until they have been formally passed and entered into the Court's record (R v Bellington [1980] VR 625). This is in contrast to a Court not of record whose judgment is perfected by the pronouncement. All judgments of the Supreme Court of New South Wales are required, subject to limited exceptions, to be entered: Pt 42 R 11(1) of the Supreme Court Rules ... . Entry of judgment is accomplished by the Registrar sealing a Minute of the judgment or order, which has been previously signed by a Registrar or the Judge or Master who made the judgment or order and filed: Pt 42 r 13 of the Rules. ... 10. For purposes of the doctrine of res judicata, the effect of giving judgment is said to be that 'the cause of action in respect of which it was given is merged in the judgment and its place is taken by the rights created by the judgment': Halsbury's Laws of England (4th ed) Vol 26 par 551; Commonwealth of Australia v Precision Pools Pty Ltd (1994) 53 FCR 183 at 191. At the time of delivering judgment a Judge is not yet functus officio: Cheeseman v Bowaters United Kingdom Paper Mills [1971] 3 All ER 513. In Driver v Driver (supra) at 10 Napier CJ said that until a judgment was entered it was 'inchoate and incomplete' having 'not yet passed from the control of the Judge who pronounced it'. ... 15. The discretion to re-open or vary judgment is thus significantly qualified. As is so often said, the power should 'be exercised with great caution'; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684 ... 32 Santow J went on to consider cases where the power to re-open had been exercised and where it had been refused as giving a guide to the circumstances in which re-opening will be available. His Honour noted that in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 30, the discretion was not exercised because the parties had been sufficiently heard on the impugned issue. The judgment in Autodesk Inc applies the principle of functus officio yet admits of a discretion to re-open in very limited circumstances. In Fairfax Publications Pty Ltd v Abernathy [1999] NSWSC 820, Adams J stated: It is the essence of the notion of 'functus officio' that the relevant function or office has been discharged or performed 'the purpose for which its creation has been fulfilled' (Leung v Minister for Immigration (1997) 79 FCR 400 per Finkelstein J at 410; Jayasinghe v Minister for Immigration and Ethnic Affairs and anor, unreported, Federal Court of Australia, Goldberg J, 25 June 1997; Winters v Cross (1976) 1 NSWLR 616 per Samuels AJ at 624). 33 In Metwally v University of Wollongong (1985) 60 ALR 68, application was made to the High Court to vary an earlier order made by the Court and hear further argument. In this application the Court stated (at 70-71): It may be assumed, without deciding, that the Court had power to vacate its order of 22 November 1994, notwithstanding that it has been perfected. If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 42 IELR 289; 150 CLR 29 at 38. The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order had been made against a party who was not heard. Mr Metwally was represented - and competently represented - in the argument before this Court ... . It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.