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| Some References, Definitions, and Notes Used by WhistleBlowers | ||||||||
Court May Set Its Own Order And Correct Itself
Lord Greene stated"These cases to me establish that a person who is affected by an order which
can properly be described as a nullity is entitled ex debito justitiae to have it set
aside. So far as procedure is concerned, it seems to me that the court in its
inherent jurisdiction can set aside its own order and it is not necessary to appeal
it."
4. Hoskins v Van den Braak (3 April 1998; Mason P; Priestley JA; Beazley JA "...
common law right to relief ex debito justitiae against such a denial of natural
justice
+++++++
"... from Tenaga Nasional Bhd - vs - Prorak Sdn Bhd
"...We pause to observe that counsel and the learned Judge were quite wrong in
assuming that the court was functus officio merely because judgment had been
entered against the appellant. The default orders made by the learned Judge had
not been extracted. The court, at the point in time when counsel for the appellant
made his oral application, therefore, continued to have full control over the
judgment it had entered. That proposition finds support from the decision of the
former Federal Court in Chee Kuan Cheng v Chuo Kong Kah [1967] 2 MLJ 74,
where Ong Hock Thye FJ (later CJ (Malaya)) said (at P 75):
"Until an order is perfected the court's jurisdiction to review the subject matter
and to recall an order pronounced is undoubtedly a matter of wide discretion."
+++++++++++
In Brown v DML Resources (No.4) [2001] NSWSC 947
47
In the course of reaching this conclusion, Upjohn LJ referred to Lord Denning's
observations in the MacFoy case about the difference between void and voidable orders. In a
passage (at 520) reminiscent of Rich J's criticism of Craig v Kanssen (Cameron v Cole, at
591), he said that "with all respect to Lord Greene's judgment", the phrase "ex debito justitiae"
is not equivalent to a nullity, but rather means "that the plaintiff is entitled as a matter of right
to have it [the defective order] set aside." He added (at 521) that in cases where there is a
fundamental defect in procedure, Order 70 rule 1 applies but the applicant is entitled to assert
the right to have the order set aside ex debito justitiae. That is, there are cases where there is
formally a discretion, but the court is bound to exercise the discretion so as to recognise the
applicant's unconditional right.
In Double Bay Newspapers v The Fitness Lounge [2006] NSWSC 226
29
Whilst it is not correct to describe an order of a superior court as a nullity there is,
nonetheless, a difference between fundamental and non-fundamental irregularities (Cameron v
Cole (1944) 68 CLR 571 at 591). In Cameron v Cole Rich J said (at 589):
"It is a fundamental principle of natural justice, applicable to all courts whether superior
or inferior, that a person against whom a claim or charge is made must be given a
reasonable opportunity of appearing and presenting his case. If this principle be not
observed, the person who is affected is entitled, ex debito justitiae, to have any
determination which affects him set aside; and a court which finds that it has been led to
purport to determine a matter in which there has been a failure to observe the principle
has inherent jurisdiction to set its determination aside ... In such a case there has been
no valid trial at all."
In THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
MILDREN J CWDS
The test to be applied is whether or not the judgment appealed from finally
determined the rights of the parties: Carr v Finance Corporation of Australia Ltd
(No 1) (1980-1) 147 CLR 246 at 248; Licul v Corney (1976) 50 ALJR 439 at 444;
(1975-6) 8 ALR 437 at 446. It is not enough that the practical effect of the
judgment is to prevent the appellant from pursuing its rights.
...
However, for reasons which will become apparent below, I am satisfied that the
order made could be set aside
BAILEY v. MARINOFF [1971] HCA 49; (1971) 125
CLR 529 (3 November 1971) Practice (N.S.W.)
COURT
High Court of Australia
Barwick C.J.(1), Menzies(2), Owen(3), Walsh(4) and Gibbs(5) JJ.
HRNG
6.
The authorities to which I have referred leave no doubt that
a superior court has an inherent power to vary its own
orders in certain cases. The limits of the power remain
undefined, although the remarks of Lord Evershed already
cited suggest that it is a power that a court may exercise
"if, in its view, the purposes of justice require that it
should do so".
...interests of justice did not render it imperative that the judge
should have power to vary his own order ,
IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA Appeal No
EA 39 of 1996 AT MELBOURNE File No SY 3981 of 1995 BETWEEN:
DEBORAH JOY LAING Appellant Wife - and - THE CENTRAL AUTHORITY
Respondent
83. The key dicta relied upon by the Central Authority
in its submission as to lack of power is Barwick CJ in
Bailey v Marinoff (1971) 125 CLR 529. The New South
Wales Court of Appeal had ordered that appeal books be
filed within a certain time in default of which the appeal
was to stand dismissed. The appeal books were not filed
in time. Subsequently, the Court of Appeal granted leave
to file out of time. That order was successfully appealed
by leave to the High Court (Barwick CJ, Menzies, Owen
and Walsh JJ, Gibbs J dissenting). Barwick CJ said at
530:-
"Once an order disposing of a proceeding has been perfected by
being drawn up as the record of a court, that proceeding apart from
any specific and relevant statutory provision is at an end in that
court and is in its substance, in my opinion, beyond recall by that
court. It would, in my opinion, not promote the due administration of
the law or the promotion of justice for a court to have a power to
reinstate a proceeding of which it has finally disposed."
84.
Gibbs J. ( in dissent) said at 539:-
"It is a well-settled rule that once an order of a court has been
passed and entered or otherwise perfected in a form which
correctly expresses the intention with which it was made the court
has no jurisdiction to alter it: In re Suffield and Watts; Ex parte
Brown [(1888) 20 QBD 693] ; In re Swire; Mellon v. Swire [(1885)
30 Ch D 239] ; Preston Banking Co. v. William Allsup & Sons
[[1895] 1 Ch 141] ; Woods v. Sheriff of Queensland [(1895) 6 QLJ
163] ; Ivanhoe Gold Corporation v. Symonds [(1906) 4 CLR 642] ;
MacCarthy v. Agard [[1933] 2 KB 417] ; Arnett v. Holloway [[1960
VR 22]. The rule rests on the obvious principle that it is desirable
that there be an end to litigation and on the view that it would be
mischievous if there were jurisdiction to rehear a matter decided
after a full hearing. However, the rule is not inflexible and there are
a number of exceptions to it in addition to those that depend on
statutory provisions such as the slip rule found in most rules of
court".
85.
His Honour also said at 544:-
"The authorities to which I have referred leave no doubt that a superior
court has an inherent power to vary its own orders in certain cases. The
limits of the power remain undefined, although the remarks of Lord
Evershed already cited suggest that it is a power that a court may exercise
"if, in its view, the purposes of justice require that it should do so"....
Where, however, the order has been made by the appellate court itself the
position is different, since if the appellate court cannot grant relief, none is
available. The fact that this Court would have power to grant special leave
to appeal from the order of the Court of Appeal made on 10th February
1970 may be put aside, having regard to the established principles that
govern the grant of special leave... I can see no reason in principle, and
certainly none in justice or convenience, why an appellate court cannot
vary the condition of an order dismissing an appeal, notwithstanding that
the appeal has been dismissed before the variation is effected; the appeal
may be at an end, but the power of the court remains, and an exercise of
the power can reinstate the appeal."
86.
The Central Authority placed further reliance upon Gamser v Nominal Defendant
(1976) 136 CLR 145. The plaintiff suffered compensable injuries from a motor vehicle
accident. His verdict was reduced by the NSW Court of Appeal and he appealed to the
High Court. In the intervening period, his condition deteriorated and he was granted an
adjournment to approach the Court of Appeal in respect of his worsened condition. The
Court of Appeal held that it had no jurisdiction to set aside the verdict or reopen the
matter. The plaintiff appealed to the High Court.
87.
Mr Basten referred especially to the judgment of Aickin J with whom Barwick CJ
and Stephen J agreed. His Honour said at 154:-
"As to the question of whether there was in the Court inherent
jurisdiction to make the order sought, Glass J.A. took the view that
the decision of this Court in Bailey v. Marinoff (1971) 125 CLR 529
was fatal to the argument. In that case this Court held that when an
appeal has been finally disposed of in a court of appeal by an order
duly entered it has no inherent power to reopen the case on an
application made after the order has been entered. That general
proposition is no doubt subject to the rule that a judgment
apparently regularly obtained may be impeached upon the ground
of fraud, and there would seem to be no reason why that rule
should not also apply to judgments upon appeal, although it is
difficult to visualize how a judgment of an appellate court could be
obtained by fraud, other than in circumstances in which the original
judgment which the appellate court had upheld had itself been
obtained by fraud. The majority judgments in Bailey v. Marinoff
appear to me to make it clear that there is no inherent power to set
aside judgments by reason of changed circumstances on
application made after the case has been finally disposed of. It is
sufficient to quote what Menzies J said [(1971) 125 CLR 529 at pp.
531-532]:
"This appeal is not concerned with the power of a court to
alter orders in pending litigation. It is concerned with the
power of a court to make an order in litigation which, without
any error or lack of jurisdiction, has been regularly concluded
and is no longer before the court. To recognise the problem
is I think, to solve it. However wide the inherent jurisdiction
of a court may be to vary orders which have been made, it
cannot, in my opinion, extend [to] the making of orders in
litigation which has been brought regularly to an end."
88.
Wentworth v Attorney-General for the State of New South Wales (1984) 154 CLR
518 is an important High Court decision subsequent to Bailey's case and Marinoff's case.
There, the High Court once again considered this aspect of the jurisdiction of the New
South Wales Court of Appeal. The joint judgment of the Court held that in a case where
the order in question regulated the procedure to be followed in the future conduct of
proceedings and would, if carried out, ultimately result in a futility, it had been within the
inherent power of that Court to set aside a previous order it had made. Gibbs CJ, Mason,
Brennan, Deane, and Dawson JJ said at 525-526:-
"The second question that arises is whether the Court had power to set
aside its previous order. Clearly, it had. Hutley J.A. held that Pt 42, r.
12(1) of the Supreme Court Rules (NSW) would have authorised an order
for a perpetual stay. That sub-rule provides:
"A person bound by a judgment may move the Court for a stay of
execution of the judgment, or for some other order, on the ground of
matters occurring after the date on which the judgment takes effect and the
Court may, on terms, make such order as the nature of the case requires."
The view of Hutley J.A. would appear to be correct, but in any case the inherent
power of the Court was sufficient to justify the order which was made. Of course
the general principle is that there is no inherent power to set aside a judgment by
reason of changed circumstances (Gamser v. Nominal Defendant [(1977 136
C.L.R. 145] but the rule is subject to exceptions : see Bailey v. Marinoff [(1971)
125 C.L.R. 529, at pp. 531-532, 539-540] and The Supreme Court Practice 1982,
(UK), 20/11/5, and cases there cited. It is unnecessary to attempt to discuss the
various exceptional cases in which the rule does not apply. The order in question
in the present case was not one by which the litigation was concluded; it was
merely an order regulating the procedure to be followed in the future conduct of
proceedings. It was an order which, if carried out, would ultimately result in a
futility. The inherent power, where it exists, is not lightly to be exercised, but it
extends to, and was properly exercised in, the present case."
++++++++++++++++++++++++++++++++
Intermediate Appellate Court Authority on the
Jurisdiction to Reopen
89.
Some intermediate appellate courts have considered the question of their power to
reopen. They have done so with regard to how such a power would be exercised in the
circumstances of the case at hand. A review of those authorities indicates that these
courts have approached the issue on the basis that none would have been disposed to
exercise such jurisdiction in the particular cases before them but were prepared to
proceed on the basis that such jurisdiction existed.
90.
Kirby P (as he then was) has been a strong proponent of the existence of such a
power.
91.
In Wentworth and Rogers (No 9) (1987) 8 NSWLR 388, the New South Wales
Court of Appeal (Kirby P, Hope and Samuels JJA concurring) suggested, but did not find
it necessary to decide, that the power of an intermediate court to reopen extended to
perfected orders. The Court's reasons included reference (at 394) to the fact that since
the Australia Act 1986, there is no appeal as of right to Australia's final court of appeal,
the High Court of Australia:-
"Since the Australia Act determined appeals as of right to Her
Majesty in Council, and since appeals now lie to the High Court
of Australia only by special leave of that Court, the function of
this Court has changed. There is now no further appeal from
this Court as of right. For most litigants, this Court is the final
place of appeal or review. It may therefore be appropriate to
apply to this Court the same principles as are stated in State
Rail Authority of New South Wales v Codelfa Constructions Pty
Ltd, though with the modification that `irremediable injustice' is
not inevitable because of the avenue which is always open to a
disaffected litigant to seek special leave to appeal from the High
Court."
92.
His Honour further said:-
"It is not necessary in this case to explore the precise extent of and limits upon the
power of the Court to vary or supplement orders made by it: cf Bailey v Marinoff
(1971) 125 CLR 529 and Southern Cross Exploration NL v Fire and All Risks
Insurance Co Ltd [1986] 7 NSWLR 319. Clearly, to the extent that such a power
exists, it would only be used in the most exceptional of cases. It would certainly
not be used in the present case upon the ground advanced by the appellant.
Accordingly, it is neither necessary nor useful to charter, in this case, the
boundaries of the Court's residual discretion to correct or supplement orders made
by it.
It may be assumed for the purposes of this judgment that such a discretion exists,
as we incline to think it does and plainly ought to exist. But it is a discretion to be
utilised with extreme care. Although not confined to such cases, it should
normally be limited to dealing with technical or incidental changes to the form or
content of orders but should not be used as a substitute for an appeal. It is, for
example, entirely inappropriate that the finality of a simple order such as was
made in the instant appeal should be disturbed by such a beneficial facility." (at
394-5).
93.
In Haig v The Minister Administering the National Parks and
Wildlife Act 1974, (1994) LGERA 143. Kirby P (as he then was) in the
New South Wales Court of Appeal referred to Wentworth v Rogers (No
9), and the fact that the High Court of Australia had refused special
leave to appeal from that decision. His Honour reiterated his adherence
to the views he there expressed, saying (at 152-3):-
"There is no doubt that the Court may correct unperfected
orders, that is, those pronounced in Court at the time of the
handing down of a decision before the entry of a formal order in
the records of the Court. This course is adopted, for example,
where it is established that a mistake has occurred in the Court's
understanding of the matters in issue between the parties: see, eg.
Winrobe Pty Ltd v Sundin's Building Co Pty Ltd [No.2] [1992]
NSWJB 139; New South Wales Medical Defence Union Ltd v
Crawford [No.2] [1994] NSWJB 68. In Winrobe, the Court, being
convinced that an appeal had been decided on a basis not raised at
the trial, withdrew its published orders. It did so although they
had been formally pronounced in open court and supported by
reasons which were then delivered. Subsequently, the Court
published a judgment which came to a conclusion different from
that earlier reached: see Winrobe Pty Ltd v Sundin's Building Co
Pty Ltd [No.3] [1993] NSWJB 42. The Court emphasised the
importance of intellectual honesty and the manifest integrity of its
process. The same principles were emphasised in Crawford
[No.2]. When, later, it was pointed out that one of the orders in
Crawford [No.2] itself did not conform to the majority opinion of
the judges expressed in their published reasons, the Court
withdrew those orders. It announced new orders for the purpose
of bringing the record of the Court into line with the decision of
the judges: see New South Wales Medical Defence Union Ltd v
Crawford [No.3] [1994] NSWJB 102.
In all of the foregoing cases, either by direction of the Court or by
sensible arrangement between the parties, the formal orders of
the Court were withheld. They were not perfected. There was
therefore no impenetrable barrier to the correction of the orders.
Yet, even in such cases, special circumstances must be shown
before the discretion to set aside or alter orders which have been
announced is enlivened The purpose of the jurisdiction is 'not to
provide a backdoor method by which unsuccessful litigants can
seek to reargue their cases' or 'simply for the purpose of giving a
party the opportunity to present a case to better advantage': see
Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 301, 312,
328; State Rail Authority of New South Wales v Codelfa
Construction Pty Ltd (1982) 150 CLR 29 at 38, 45f; Wentworth v
Woollahra Municipal Council (1982) 149 CLR 672 at 683; 51
LGRA 212 at 220; Permanent Trustee Co. (Canberra) Ltd v Stocks
& Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at 201. Special
or 'very special' circumstances must be shown, amounting to a
serious oversight or departure from due process or mistake.
Otherwise, the orders pronounced must stand. In Australian
courts other than the High Court of Australia, they must then be
corrected, if at all, by appeal or by judicial review where
available.
The question remains as to whether the jurisdiction to correct is available in the
case of a perfected order. Whilst the Minister asserted that this Court had no such
jurisdiction, at least in a case such as the present, it is my view that such a
jurisdiction exists. It is confined to the most exceptional circumstances. It is true
that earlier decisions doubt the existence of this jurisdiction, statute apart: see, eg,
Bailey v Marinoff (1971) 125 CLR 529 at 531. However, later decisions have
acknowledged the inherent jurisdiction in a court such as this to set aside a
previous order in limited circumstances. As for example where the order did not
conclude litigation but merely regulated procedure and where its execution would
result in futility: see, eg, Wentworth v Attorney-General for the State of New
South Wales (1984) 154 CLR 518 at 526. However, it has been emphasised that
such inherent power, where it exists, "is not lightly to be exercised". It is truly
exceptional.
In the case of the High Court of Australia, the jurisdiction to correct even
perfected orders has certainly been acknowledged. It has been explained in terms
of that Court's position "as a final court of appeal to prevent irremediable
injustice being done by a court of last resort": see Codelfa (at 45). However, in
Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 at 394, this court pointed out
that, since the termination of appeals to the Privy Council and the provision for
appeals to lie to the High Court only by special leave of that Court, there is now
no further appeal from this Court as of right:
"For most litigants, this Court is the final place of appeal or review. It
may therefore be appropriate to apply to this Court the same principles as
are stated in State Rail Authority of New South Wales v Codelfa
Constructions Pty Ltd, though with the modification that "irremediable
injustice is not inevitable because of the avenue which is always open to a
disaffected litigant to seek special leave to appeal from the High Court."
In that last-mentioned case, it was unnecessary for this Court to "explore the
precise extent of and limits upon the power of the Court to vary or supplement
orders made by it". The Court accepted that: " ... to the extent that such a power
exists, it would only be used in the most exceptional of cases."
The High Court of Australia refused special leave to appeal from that decision.
So this Court has assumed that such discretion existed. It has expressed the view
that :
"plainly [it ought] to exist. But it is discretion to be utilised with extreme
care. Although not confined to such cases, it should normally be limited
to dealing with technical or incidental changes to the form or content of
orders but should not be used as a substitute for an appeal. It is, for
example, entirely inappropriate that the finality of a simple order such as
was made in the instant case should be disturbed by such a beneficial
facility."
I remain of the view which I expressed in Wentworth v Rogers [No 9] with the
concurrence of Hope and Samuels JJA and without disturbance by the High Court
: see also Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at
26; (1993) 82 LGERA 158 at 172. Neither the inherent power of the Court nor
the power conferred by parliament under s23 of the Supreme Court Act 1970
(NSW) is unlimited. Neither permits the Court to undo basic principles of
jurisprudence in the name of an undefined feeling that an injustice has occurred
which the Court must correct: see also University of Wollongong v Metwally
(1985) 59 ALJR 481 at 482.
To the extent that the Minister asserted that the Court was bound to dismiss Mr
Haig's motion to re-open the appeal for a complete absence of jurisdiction to act
thus, I would not accede to his argument. But that leaves the question whether, on
the merits, a sufficiently exceptional case was made out by Mr Haig to permit or
require the course which he urged."
94.
Priestly JA proceeded on the basis that he assumed "without expressing any
opinion on the matter that there is power in the Court to permit such a re-opening". (at
159). Handley JA assumed in favour of the applicant, the power to re-open the Court's
perfected orders (at 159). Like Kirby P, neither would have exercised that power in the
case.
95.
A willingness to assume without deciding the existence of such a power is also
manifest in the unreported decisions of the Full Court of the Federal Court in Donkin v
AGC (Advances) Ltd (30 August 1995 per Black CJ, Davies and Whitlam JJ) and Grace
Pushpa Wati v Minister for Immigration & Multicultural Affairs (3 October 1997 per
Davies, Lindgren and Lehane JJ). The following extract from Wati's case considers
both cases:-
"In Donkin v AGC (Advances) Ltd (Fed Ct/FC, 30 August 1995,
unreported), an application was made for leave to institute
proceedings to set aside a decision of a trial Judge and the
judgment of a Full Court which had dismissed an appeal from the
trial Judge's decision. The application was referred by the Chief
Justice to a differently constituted Full Court. Davies J referred in
some detail to the authorities and said (at 9) that he was prepared
to assume that the Court could
`reopen a case if there were a truly exceptional
circumstance apart from fraud which required a matter to be
reopened in the interests of justice.'
Black CJ was prepared to make a similar assumption (at 2).
However, his Honour pointed out that any such jurisdiction had to
be exercised with great caution and having regard to the
observations of the High Court in Wentworth v Woollahra MC.
Should the Matter be Reopened?
We are prepared to assume, without deciding, that the Court has
jurisdiction to consider whether the orders made by Davies J should
be set aside, notwithstanding that those orders have already been
entered. We are also prepared to assume, without deciding, that
the Court, as presently constituted, can exercise that jurisdiction,
and can do so without the appellant filing documentation, other than
the notice of appeal. Nonetheless, in our view, this is not a case in
which the Court should set aside to modify the orders made by
Davies J."
96.
For the sake of completeness, mention should also be made of Qantas Airways v
Cameron [1996] 715 FCA 1 where Davies, Lindgren and Lehane JJ accepted the power
to reopen in respect of orders that had not been perfected.
97.
Of particular relevance to the present application, is that in Wati, the Court that
assumed the existence of power was differently constituted to the Court that had made the
order in its appellate jurisdiction. It is also relevant that the orders in question had
already been entered.
CDJ v VAJ
98.
For the purposes of the present application, the facts in CDJ v VAJ are not
important. In essence, the High Court, in deciding an appeal from the Full Court in
respect of parenting orders made under the Family Law Act, was required inter alia, to
consider the exercise of discretion by the Full Court with respect to the admission of
further evidence pursuant to s93A(2) of that Act. In doing so, the Justices of the High
Court made important observations as to the exercise of the Full Court's jurisdiction in
cases concerning children that are, in my view, apposite to the present application.
99.
The majority judgment of McHugh, Gummow and Callinan JJ (at 85,446-7)
emphasised the importance to the exercise of discretion of the fact that a child is the
subject matter of the proceedings and that the significance of the principle of finality is
relevant but qualified in such cases:-
"104. In the exercise of the discretion conferred by a power such as s
93A(2), the critical factor is the subject matter of the proceedings
with which the appeal is concerned. This is because the purpose of the
power to admit further evidence is to ensure that the proceedings do not
miscarry. Tests such as those stated in Wollongong Corporation
based on the need for finality in litigation are therefore not
necessarily applicable to cases in which the interests of third parties,
such as children, are at stake[60], although factors such as finality,
discoverability of the evidence and its likely effect on the orders made are
usually relevant to the exercise of the discretion." (emphasis added,
footnote omitted)
100. Next in that paragraph, their Honours contrast the position at common law
with respect to the admission of further evidence. However, in doing so, they
also make it clear that the distinction they draw refers not only to the issue of the
reception of further evidence, and that guidelines may be developed by the Full
Court:-
"In an application at common law to admit further evidence, the court
applies principles, bordering on fixed rules. In an application under s
93A(2) and similar provisions, the Full Court or Court of Appeal weighs
factors, although it may of course develop guidelines for weighing
those factors and exercising the discretion." (emphasis added)
101.
Kirby J, who dissented as to the outcome of the appeal but not for relevant
purposes, had this to say about the principle of finality in proceedings concerning
children and matters of public interest (at 85,465-6):-
"The law books are full of general statements about the interests of the
public, and the long-term interests of litigants, in finality of judicial
decision-making: interest reipublicae ut sit finis litium[144]. Such
statements go back for centuries[145]. They have been repeated in recent
times[146] and in the context of family law cases[147]. In a general sense,
the principle has universal application. However, because of the
peculiarities of family law, concerned as it often is with deeply felt human
emotions from which it may be difficult or impossible for the parties to
escape and from which money may not extricate them, some of the
emphasis on finality needs to be qualified. Decisions affecting the
welfare of children partake of the traditional parens patriae jurisdiction of
the Crown's courts[148]. Necessarily, decisions on such questions have
consequences for persons (namely the children) who are ordinarily not
parties to the proceedings before the Court, even if today, in Australia,
they are sometimes separately represented (as they were in this case).
Such decisions also have consequences for the community, which
has its own wider concern that the disruptive outcomes of incorrect
or inappropriate decisions could have long-term consequences.
Where the interests of others and of the public are affected, courts
have for a long time treated the decisions which they must make in
ways different from those made in ordinary civil litigation between
parties of full capacity, represented and before the court[149]. This
consideration (as I shall show) has sometimes affected the admission of
fresh evidence in an appeal. It may distinguish such cases from the
ordinary civil case.
...
"The statutory power in the case of the Family Court is similar to that
afforded to the Full Court of the Federal Court of Australia[155]. The latter
was a nearly contemporaneous creation of the Parliament. The Federal
Court, in a series of decisions, has developed a jurisprudence (which it is
inappropriate here to analyse or to question) under which it is ordinarily
necessary to establish that a special case exists before further evidence
will be received on an appeal[156]. However, in the Federal Court, it has
been recognised that a wider approach is appropriate where the interests
of persons other than the parties, or where the public interest, may be
affected by the determination of the appeal in question[157]. Thus, a
greater willingness to receive further evidence on appeal has been
evidenced in a case involving bankruptcy affecting the interests of
creditors generally[158], and another in which the status of an industrial
organisation was involved[159]. Obviously, a case concerned with the
status, welfare, residence and other rights of children bears close
similarity to the last-mentioned cases." (emphasis added, footnotes
omitted).
Conclusions as to the Jurisdiction of the Full Court of the
Family Court to Reopen
102.
Having regard to the above decision and to Haig's case, and other intermediate
appellate authorities that I have discussed, I do not consider that Bailey's case and
Gamser's case determine the issue of jurisdiction of this Court.
++++++++++++++++++++++
93.
In Haig v The Minister Administering the National Parks and Wildlife Act 1974,
(1994) LGERA 143. Kirby P (as he then was) in the New South Wales Court of Appeal
referred to Wentworth v Rogers (No 9), and the fact that the High Court of Australia had
refused special leave to appeal from that decision. His Honour reiterated his adherence to
the views he there expressed, saying (at 152-3):-
"There is no doubt that the Court may correct unperfected orders, that is, those
pronounced in Court at the time of the handing down of a decision before the
entry of a formal order in the records of the Court. This course is adopted, for
example, where it is established that a mistake has occurred in the Court's
understanding of the matters in issue between the parties: see, eg. Winrobe Pty
Ltd v Sundin's Building Co Pty Ltd [No.2] [1992] NSWJB 139; New South Wales
Medical Defence Union Ltd v Crawford [No.2] [1994] NSWJB 68. In Winrobe,
the Court, being convinced that an appeal had been decided on a basis not raised
at the trial, withdrew its published orders. It did so although they had been
formally pronounced in open court and supported by reasons which were then
delivered. Subsequently, the Court published a judgment which came to a
conclusion different from that earlier reached: see Winrobe Pty Ltd v Sundin's
Building Co Pty Ltd [No.3] [1993] NSWJB 42. The Court emphasised the
importance of intellectual honesty and the manifest integrity of its process. The
same principles were emphasised in Crawford [No.2]. When, later, it was pointed
out that one of the orders in Crawford [No.2] itself did not conform to the
majority opinion of the judges expressed in their published reasons, the Court
withdrew those orders. It announced new orders for the purpose of bringing the
record of the Court into line with the decision of the judges: see New South Wales
Medical Defence Union Ltd v Crawford [No.3] [1994] NSWJB 102.
In all of the foregoing cases, either by direction of the Court or by sensible
arrangement between the parties, the formal orders of the Court were
withheld. They were not perfected. There was therefore no impenetrable
barrier to the correction of the orders. Yet, even in such cases, special
circumstances must be shown before the discretion to set aside or alter
orders which have been announced is enlivened The purpose of the
jurisdiction is 'not to provide a backdoor method by which unsuccessful
litigants can seek to reargue their cases' or 'simply for the purpose of
giving a party the opportunity to present a case to better advantage': see
Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 301, 312, 328; State
Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982)
150 CLR 29 at 38, 45f; Wentworth v Woollahra Municipal Council (1982)
149 CLR 672 at 683; 51 LGRA 212 at 220; Permanent Trustee Co.
(Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195
at 201. Special or 'very special' circumstances must be shown, amounting
to a serious oversight or departure from due process or mistake.
Otherwise, the orders pronounced must stand.
+++++++++++++++++
BAILEY v. MARINOFF (1971) 125 CLR 529
Practice (N.S.W.)
COURT
High Court of Australia
Barwick C.J.(1), Menzies(2), Owen(3), Walsh(4) and Gibbs(5) JJ.
HRNG
Somervell L.J. did not expressly found his judgment on the fact that
a decree absolute had been taken out, it seems to me that this was
implicit in what he said in the following passage (1948) P, at pp 94-
95:
"The first question is whether the court has jurisdiction
to deprive a party of rights lawfully acquired under an order
of this court in circumstances of the most complete regularity
on the part of the party whom the court is asked to deprive
of his rights.