Yolarno Pty Ltd v TransGlobal Capital Pty Ltd & Ors [2003] NSWSC 1206 | Case summary

4575/00 YOLARNO PTY LTD v TRANSGLOBAL CAPITAL PTY LTD & 2 0RS (NO 4) EX TEMPORE JUDGMENT 1 Before a judgment has been perfected by entry, there is jurisdiction under the Supreme Court Rules 1970, Pt 40 r 9 and inherently to vary it, although that power should be exercised sparingly (Wentworth v Woollahra Municipal Council (1981-1982) 149 CLR 672, Smith v NSW Bar Association (1992) 176 CLR 256, Autodesk Inc v Dyason (No 2) (1992-1993) 176 CLR 300). 2 Where the basis for the variation is a mistake the judge has found, it is better that the error be corrected than that the parties be put to the expense of an appeal (Pittalis v Sherefettin [1986] QB 868, Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513). 3 Contrary to the submission on behalf of the plaintiff on 27 November 2003, the plaintiff now concedes, and it is common ground, that there is no power to award pre-judgment interest under the Trade Practices Act 1974 (Cth), s 82 (Nella v Kingia Pty Ltd (1989) ATPR 40-952). 4 Australian National Airlines Commission v The Commonwealth (1975) 49 ALJR 338 remains authority for the proposition that the Supreme Court Act 1970, s 94 does not empower the court to award pre-judgment interest on an award of damages under the Trade Practices Act 1974 (Cth), s 82 even if that decision is now questionable in light of the reasoning in cases such as Northern Territory v GPAO (1999) 196 CLR 553, Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 and ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559. 5 It is submitted that Australian National Airlines Commission is distinguishable because it called for consideration of the application of the Supreme Court Act 1970, s 94 to the proceedings in the High Court and the powers of the Court were considered in relation to the High Court Procedure Act 1903 (Cth) which contained its own provision as to interest in s 26A as well as the Judiciary Act 1903 (Cth) s 79. And it was submitted that the decision was explained in State Bank (NSW) v Commonwealth Savings Bank (1984) 154 CLR 579. I do not regard those matters as warranting my departing from the decision in Australian National Airlines Commission. That is a matter for an appellate court and, in particular, the High Court. 6 Where on reopening an application is made for the reception of further evidence, a number of considerations are relevant: the reasons why the evidence was not led in the first place (Urban Transport Authority v Nweiser (1992) 28 NSWLR 471 at 478), whether there was a deliberate decision not to call the evidence which, ordinarily, will tell decisively against the application (Smith at 266, Urban Transport Authority at 478), whether the decision not to call the evidence was based on a tactical ground which, ordinarily, will be fatal to the application (Urban Transport Authority at 478), whether the decision is based on a mistaken apprehension of the law or the facts resulting from an error by counsel (Urban Transport Authority at 478), whether, where the hearing is complete but reasons for judgment have not been delivered, the other side will suffer prejudice or embarrassment (Smith at 267), whether, where reasons for judgment have been delivered, the appeal rules relating to further evidence would permit the evidence to be called (Smith at 267). 7 Under the Supreme Court Act 1970, s 75A(8), further evidence will only be received, on appeal from a judgment after a trial or hearing on the merits, on special grounds. In Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444, Dixon CJ stated the common law rule for the admission of further evidence as requiring that, if the evidence had been available at trial, it is reasonably clear that an opposite outcome would have resulted and that the evidence could not, with reasonable diligence, have been obtained for use at the trial. See, also, McCann v Parsons (1954) 93 CLR 418 and Orr v Holmes (1948) 76 CLR 632. 8 In CDJ v VAJ (1998) 197 CLR 172 it was held that common law principles do not apply to the exercise of a general statutory power to admit further evidence. The Supreme Court Act 1970, s 75A(8), however, is not a general power. It requires the existence of special grounds and the normal practice of the Court of Appeal of New South Wales has been to find special grounds only where three requirements are satisfied: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, secondly, the evidence must be such that there is a high degree of probability that there would be a different verdict and, thirdly, the evidence must be credible (Wall v Timbertown Community Enterprises Ltd (in liq) (2002) 42 ACSR 1 at par 24). 9 However, while the above matters are relevant, the principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be (Urban Transport Authority at 478). In Autodesk at 302, Mason CJ, after stating the general proposition that jurisdiction to reopen a judgment will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard, went on to say: "But these statements do not exclude the exercise of jurisdiction to reopen a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders. So much was acknowledged by Brennan, Dawson, Toohey and Gaudron JJ in Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 264-266, when their Honours said: "if reasons for judgment have been given, the power is only exercised if there is some matter calling for review." It is sufficient to give three examples. In Re Harrison's Share under a Settlement [1955] Ch 260, orders were set aside following a decision of the House of Lords which overruled authorities on the basis of which the orders had been made. In NSW Bar Association v Smith (unreported, 4 July 1991), the New South Wales Court of Appeal reconsidered orders previously made in view of an argument that the Court had mistakenly assumed that particular evidence had not been given at earlier hearings (The Court of Appeal refused to set aside its orders but an appeal to this Court was successful). And, in Pittalis v Sherefettin [1986] QB 868, a judge recalled orders the day after they were made upon determining that he had "erred in a material matter in his approach to the case" ( ibid , at p. 880. The Court of Appeal upheld the decision to review the matter, though disagreeing with the judge's ultimate conclusion). These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment." 10 Without derogating from those observations, the position is different with respect to a single judge of the Supreme Court of New South Wales insofar as an appeal lies from his or her judgment to the Court of Appeal and, upon the grant of special leave, to the High Court. 11 Likewise, with respect to the general proposition that the Court of Appeal will not regard special grounds to exist for the reception of further evidence unless the common law rules in that respect are satisfied, this general statement is not an exhaustive principle. In Tamas v Streimer, unreported, Court of Appeal, 10 July 1981, Moffitt P said that the grounds on which a new trial would be granted have never been completely stereotyped. 12 In my view, if I reopen to discharge the order for interest under the Trade Practices Act 1974 (Cth), s 82 on the ground that common justice demands that the misapprehension as to the law should be rectified, I should also allow the plaintiff to lead further evidence on its loss of investment or cost of borrowing on payment of the installments under the contract with the first defendant on the grounds that common justice demands it. 13 If it was open to the court in The Commonwealth v McCormack (1984) 155 CLR 273 to allow the amendment of a judgment to overcome the oversight to mention to the appellate court that the Commonwealth had paid moneys to discharge the decision in the Court below, it is, in my view, open to me to allow the evidence in question to overcome the failure to adduce the evidence at trial. 14 The plaintiff is entitled to be recompensed for its payment of the installments. That recompense is incomplete if it is not entitled to interest and it is not entitled to damages for its loss of investment or its need to borrow funds to meet those commitments. Even though the common law rules for the reception of further evidence on appeal are not met in this case, I am of the view that it is appropriate to make it a condition of the reopening that the plaintiff be given liberty to call evidence of its loss in terms of the Trade Practices Act 1974 (Cth), s 82 by its payments of the installments. 15 I set aside my order as to interest. I give leave to file in Court an affidavit of Donald Green sworn on 12 December 2003. I direct the plaintiff to serve on the first and second defendants and deliver to my Associate a calculation of interest in accordance with the rates contained in the affidavit of Mr Green by no later than noon on Tuesday, 16 December 2003. I direct the first and second defendants to serve on the plaintiff and deliver to my Associate any objections to the affidavit of Mr Green by no later than 4pm on Tuesday, 16 December 2003. I stand the matter over before me at 9.30am on Thursday, 18 December 2003. I reserve costs. I note that the plaintiff by its counsel undertakes not to seek to enforce the judgment prior to 10am on Thursday, 18 December 2003.

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Yolarno Pty Ltd v TransGlobal Capital Pty Ltd & Ors

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