While illustrations of where the courts have or have not re-opened a judgment not yet entered are of value, they can be subsumed more generally in what Mason CJ said in Autodesk (at 301-2). He delimited the scope of the discretion by explaining that "the exceptional step" of reviewing an issue might occur where a court has good reason to consider that it had proceeded on a misapprehension as to the facts or the law and where the misapprehension cannot be attributed solely to the applicant's neglect or default".
9 It seems to me that the relevant principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision. I adopt, in that connection, the following observation of Rix LJ in Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513:
"I do not wish to say anything against the usefulness of the reconsideration jurisdiction, within its proper limits. I have made use of it myself. However, it is in the nature of the legal process that, once judgment has been rendered, analysis thereafter becomes clarified and refined, and citation of authority is applied to the findings made at first instance so as to illuminate that clarification and refinement of analysis of which I speak. But that is the function of the appeal process. In my judgment, to grant this application that I reconsider my judgment would subvert the appeal process itself. In doing so, it would not answer the interests of justice, but would be the antithesis of justice according to law. There are of course cases where an error of fact or law may be too clear for argument. The best test of that is perhaps - but not necessarily - where the judge himself identifies the error which concerns him. In such a case, it is better that the error is corrected without imposing on the parties the need for an appeal. But no parallel to Noga's application has been cited to me. It is in my judgment wrong for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits."
10 In the present case, the plaintiffs say that they had inadequate opportunity to address the issues of quantum meruit and the nature of the s.208M appeal and also that they wish to adduce evidence relevant to views I expressed as to what would be appreciated by the expression "pro bono" in the particular context. I say four things about that. First and as I have already noted, the first two matters were the subject of exchanges in the course of the hearing. Second, the ways in which a particular expression in common usage in legal circles would be employed in a particular context is something on which evidence would not normally be useful. Third, this cannot, as I see it, be said to be a case in which the court is asked simply "to repair errors clearly demonstrated and readily corrected" (Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (unreported, NSWCA, 8 July 1993, per Kirby P). Third and as Lord Wilberforce observed in Saif Ali v Sydney Mitchell & Co [1980] AC 198, "Judges are more than mere selectors between rival views - they are entitled to and do think for themselves." Fourth, if re-opening were permitted and further submissions were made, the fact that I had already expressed myself as I did in the original judgment would inevitably have the effect of casting me in a role somewhat akin to that occupied by a respondent upon appeal; and that is not, from anyone's perspective, a satisfactory base from which to seek to progress (or, if rectification is needed, to seek to rectify) the matters which are of concern to the plaintiffs.
11 The jurisdiction to re-open after judgment is discretionary and is to be exercised having regard to the public interest in maintaining the finality of litigation. An appeal against my original decision is available upon leave granted by the Court of Appeal: Supreme Court Act, s.101(2)(q). If that decision is affected by any error of the kind to which the plaintiffs have referred in seeking to have the matter re-opened - or, for that matter, any other error - such that the requirements of justice demand that the decision be reviewed, leave will be readily granted so that the question of error can be fully explored on appeal and the error set right. The leave to appeal needed in this case is quite different from the kind of leave that influenced thinking in Wentworth v Wentworth (unreported, NSWCA, 30 November 1998), Taylor v Lawrence [2002] 2 All ER 353 and Stambulich v Ekamper [2002] WASCA 212 (ie, the form of leave which seeks to ensure that only cases of particular importance are appealed from an intermediate court of appeal to a final court of appeal). If the matters the plaintiffs seek to agitate further are to be pursued, they should be pursued in the Court of Appeal.
12 In 13492 of 2001, the plaintiff's notice of motion filed on 5 September 2002 is dismissed. In 13494 of 2001, the plaintiffs' notice of motion filed on 5 September 2002 is dismissed.
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