Wardle v Agricultural and Rural Finance Pty Ltd

Judgment 1THE COURT: These proceedings were commenced in 2003. They have a long and convoluted procedural history, involving no less than three applications for leave to appeal to the High Court. The first of these resulted in the High Court granting leave and allowing an appeal by Agricultural and Rural Finance Pty Ltd (ARF) against an earlier decision of the Court of Appeal: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570. ARF is the applicant on the notice of motion now before this Court. 2The decision of the High Court effectively resolved the proceedings against a substantial proportion of the more than 200 borrowers who had originally been sued by ARF. However, proceedings continued against the remaining borrowers in the Equity Division. In a series of judgments given in 2010, Einstein J dealt with various issues arising out of ARF's claims and the borrowers' cross-claims. His Honour entered judgment against a number of the borrowers. 3Eleven of the borrowers against whom Einstein J entered judgment appealed or sought leave to appeal to the Court of Appeal. The Court has delivered three judgments arising out of the appeals and applications for leave to appeal. 4In the first, delivered on 26 April 2012, the Court granted leave to borrowers who required leave to appeal and allowed all the borrowers' appeals: Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 107 (Judgment No 1). The consequential orders made by the Court in Judgment No 1 included the following: "(6) Remit to the Equity Division for further hearing ARF's claim against each of the Appellants [borrowers] other than Mr Holmes. (7) Reserve further consideration of what other orders should be made to give effect to these reasons for judgment." 5In accordance with directions given in Judgment No 1, the parties made submissions as to the form of orders required to give effect to the reasons for judgment. The Court subsequently made further detailed orders in a judgment delivered on 30 November 2012: Wardle v Agricultural and Rural Finance Pty Ltd (No 2) [2012] NSWCA 388 (Judgment No 2). The orders made by the Court in Judgment No 2 included the following: "(5) The order made at first instance on 9 June 2011, dismissing the Appellants' cross-claims, be set aside." 6In a third judgment delivered on 11 July 2013, the Court amended the orders made in Judgment No 2 in certain presently immaterial respects, pursuant to the "slip rule" (Uniform Civil Procedure Rules 2005 (NSW) r 36.17): Wardle v Agricultural and Rural Finance Pty Ltd (No 3) [2013] NSWCA 207. 7By an amended notice of motion dated 16 June 2014, ARF seeks orders whereby this Court, among other matters, is to determine the "precise scope of the further hearing" to be held by Equity Division. The filing of ARF's motion seems to have been prompted by a disagreement between the parties in the Equity Division as to the issues that remain for determination in the further hearing. The judge before whom the further hearing has been listed (Hammerschlag J) has set the matter down on dates in August 2014. 8His Honour has as yet not made any order or ruling as to the scope of the further hearing. However he has apparently entertained a suggestion by counsel that there might be an inconsistency between the Court's reasons and the form of the orders made in Judgment No 1 and Judgment No 2. During argument in this Court, Mr Bevan, who appeared for ARF, explained that the possible inconsistency arises because Order (6) in Judgment No 1 does not specify the issues that are to be determined in the "further hearing" and Order (5) in Judgment No 2 does not expressly state that the cross-claims fall for determination in the further hearing. It is therefore said that there may be an inconsistency between the reasons in Judgment No 1 and Judgment No 2, which state expressly that some issues have been resolved and are not to be reopened, and the Orders, which seem to contemplate that all issues may be relitigated without regard to findings and rulings already made in the proceedings. 9Oddly enough, Mr Bevan made it clear that he was not asserting that the Orders were inconsistent with the Court's reasons or that the Orders incorporated ambiguities that required clarification by this Court. He accepted that Order (6) in Judgment No 1 must be construed as though the words "consistently with the Court's reasons for judgment" were included in the Order. Mr Epstein, who appeared for the Appellants, also accepted that Order (6) must be construed in this way. Similarly, the parties seemed to accept that Order (5) in Judgment No 2 has the effect of requiring a further hearing of the Appellants' cross-claims in a manner consistent with the Court's reasons for judgment. Those reasons are contained in both Judgment No 1 and Judgment No 2. 10It is, with respect, difficult to see how the Orders could be interpreted in any way other than that accepted by both counsel. Order (7) and the direction for further submissions made in Judgment No 1 made it clear that the Court was giving the parties the opportunity to file further submissions in order to ensure that the Orders reflected the Court's reasons for judgment. The parties duly made their respective submissions. Neither suggested any refinement of Order (6) made in Judgment No 1. 11In Judgment No 2, Campbell JA, who gave the leading judgment, explained in some detail the issues that as a consequence of the Court's reasoning do and do not remain alive for the purposes of the further hearing. Notwithstanding that the Appellants subsequently filed a motion under the slip rule to correct the Orders made in Judgment No 2, neither party suggested at the time that any of the other Orders were inconsistent with the reasons for judgment or required elucidation. 12ARF's amended motion relies on the slip rule. Assuming the rule can be invoked at this stage of the proceedings, it does not apply here. Neither party has shown that the Orders made by the Court in Judgment No 1 and Judgment No 2 are affected by a "clerical mistake, or an error arising from an accidental slip or omission". 13ARF also invokes what is said to be the Court's inherent jurisdiction to rectify its own orders, judgments and reasons. Assuming that such a jurisdiction exists independently of the slip rule and can be exercised at this stage of the litigation, no basis has been shown for exercising the jurisdiction in relation to the Orders made in Judgment No 1 and Judgment No 2. The Orders are not inconsistent with the reasons for judgment and they have not been shown to be based on any misapprehension as to the arguments advanced by the parties. 14This is not to say that the parties will agree as to the issues that remain for determination in the further hearing. It is not unusual for such questions to arise when a matter has been remitted by an appellate court for a further hearing by a trial court. Indeed, after the High Court had given its decision it was necessary for Einstein J and, on appeal, this Court to construe and give effect to the undertakings given by the Appellants at an earlier stage of the litigation "to be bound on common questions by the findings of the 'Gardiner Test Case'". The resolution of any question relating to the scope of the further hearing, in the first instance, is a matter for the trial Judge. 15ARF's amended motion must be dismissed. As both parties seem to have contributed to the perceived need to file the motion, it is appropriate that there be no order as to the costs of the motion.