The Orders Should be Entered Immediately
10Order 13 of the orders made on 22 May 2013 states as follows:
(13) liberty to the parties to apply on five days' notice for any further or other orders (including orders revoking, varying, supplementing or replacing these orders, in whole or in part, upon sufficient cause, such as, but not limited to, unforeseen or changed circumstances being shown);
11Applications have been made by both parties, especially by the Foxman entities in a substantive manner, to vary the orders made on that date pursuant to order 13. These applications are listed for hearing on 17 and 18 September 2013.
12Initially, the council contended that the Court did not have the power to make order 13. However, it has subsequently abandoned its opposition to any application brought by the Foxman entities to vary the final orders pursuant to order 13 on this basis.
13An order that has not been entered may be the subject of an application to vary it (r 36.16(1) of the UCPR). By comparison, an order that has been entered may only be set aside or varied in more circumscribed circumstances pursuant to r 36.16(2) of the UCPR. In particular, an order arguably cannot be the subject of such an application if it "determines any claim for relief" (r 36.16(3) of the UCPR). The equivocation arises because it is unclear whether subrules (3A) and (3B) of r 36.16 stand apart from the proscription contained in subrule (3).
14The Foxman entities argue that there is the risk that entry of the orders would unfairly limit them in their application presently listed for hearing on 17 and 18 September 2013. They submit that the balance of convenience favours the maintenance of the status quo pending the outcome of that hearing. I disagree.
15First, leaving aside the potential application of r 36.16(3) (even in light of order 13) there is no evidence before the Court upon which any weight may be placed that would permit the Court to find that any prejudice or unfairness would flow to the Foxman entities if the orders are entered forthwith. The affidavit of Mr Hwang is deficient in this regard absent any further details concerning the advice that has been given to, and the tactical decisions that have been made by, the Foxman entities. While the provision of this information may result in a waiver of legal professional privilege, if these are the bases upon which the order is sought, such may be the price that the Foxman entities must pay to obtain their order.
16Second, apart from the evidentiary difficulties identified above, the Foxman entities have not explained how entry of the orders would unfairly limit them, as they claim, in the applications presently listed for hearing on 17 and 18 September 2013, to vary the final orders made in Foxman (No 5) on 22 May 2013 pursuant to order 13. Upon the orders having been entered, the parties still have 14 days after the orders are entered to seek the setting aside or variation of those orders (r 36.16(3A) of the UCPR). Similarly, the Court may of its own motion, within 14 days after the orders are entered, set aside or vary those orders (r 36.16(3B) of the UCPR). The 14 day period will extend beyond the hearing on 17 and 18 September 2013. I do not understand, therefore, how entry of the orders will adversely affect that hearing.
17Third, even if the orders are not entered, any variation of them outside the ambit of order 13 will be subject to the significant limitation imposed by the public interest in maintaining the finality of litigation. This public interest requires great caution in the exercise of the power to set aside or vary the orders, especially where the variation sought would have the practical effect of reopening the proceedings to enable a significant rehearing (Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at
18302-3, 309 and 317 and De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215). There can be no doubt, when regard is had to the application to vary the orders pursuant to order 13, that the latter is what is envisaged by the Foxman entities in an application under r 36.16(3A) of the UCPR.
19Fourth, once the 22 May 2013 orders are entered, and assuming the orders are sought to be varied or set aside either pursuant to r 36.16(3A) or (3B) within 14 days of the entry of those orders, the Court's power to vary or alter those orders is generally subject to the same limitations that the general law imposes on the variation of judgments and orders prior to entry.
20Fifth, it should be noted that at no stage prior to 4 September 2013 (the date of the filing of the notice of motion the subject of this hearing) have the Foxman entities disclosed to the Court or the council that in seeking to vary or revoke the Court orders, the Foxman entities would be relying on an alternate basis to that provided by order 13.
21The council seeks, as Mr Hones deposes in his affidavit, to enforce the orders made on 22 May 2013, but it cannot do so unless those orders are entered. Having gained the benefit of those orders, I agree that it is entitled to have them implemented (subject of course to any variation made to them by dint of the hearing on 17 and 18 September 2013).
22Having failed to convince the Court that any unfairness, prejudice or disadvantage will necessarily result by the Court entering the orders forthwith, this is precisely what the Court proposes to do.