Andrew Garrett Wine Resorts v National Australia Bank Ltd (No 4) - [2005] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ANDREW GARRETT WINE RESORTS & ANOR v NATIONAL AUSTRALIA BANK LTD (NO 4)
Judgment of The Honourable Justice Gray
12 May 2005
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
MORTGAGES - MORTGAGES AND CHARGES GENERALLY - REMEDIES OF THE MORTGAGEE - ENTRY INTO POSSESSION
Applicant seeks re-open an appeal against decision by the Full Court in Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd - that judgment dismissed an application to set aside an order for possession made by a Judge of this Court on 26 July 2004 - consideration of general approach to be taken to applications to re-open a determined Full Court appeal - decision of Full Court only to be re-opened in exceptional circumstances - exceptional circumstances not established - application to re-open appeal dismissed.
Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank [2004] SASC 348; Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank (No 2) [2005] SASC 105; Adam v Robertson (1999) 73 SASR 360; Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 300; Autodesk Inc v Dyason (No 2) (1992) 176 CLR 300, considered.

ANDREW GARRETT WINE RESORTS & ANOR v NATIONAL AUSTRALIA BANK LTD (NO 4)
[2005] SASC 172

This is an application to re-open a decision of the Full Court.
In Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd[1] the Full Court dismissed several appeals, including an appeal against an order for possession made by a Judge of this Court on 26 July 2004. The order of the Full Court has been sealed. An application for special leave to appeal to the High Court of Australia awaits determination.
[1] [2004] SASC 348.
The general approach to be taken to applications to re-open a determined Full Court appeal was discussed in McAdam v Robertson.[2] In McAdam Doyle CJ, when discussing the relevant principles, drew on the High Court decisions in Smith v New South Wales Bar Association (No 2)[3] and Autodesk Inc v Dyason (No 2).[4]
[2] (1999) 73 SASR 360.
[3] (1992) 176 CLR 256.
[4] (1992) 176 CLR 300.
In Autodesk Mason CJ discussed the principles to be applied:[5]
… 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. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.
[5] (1992) 176 CLR 300 at 303.
Brennan J observed:[6]
[N]o jurisdiction to set aside the judgment already pronounced merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law.
…
The decision of this Court in the present case was not given in ignorance or forgetfulness of some statutory provision or of some critical fact. To entertain an application to reopen an appeal after judgment in order to consider further argument on an issue already decided would be to subvert the finality of litigation and to invite interminable arguments about the importance of the legal questions to be recanvassed and the correctness of the answers to those questions already given.
[6] (1992) 176 CLR 300 at 309-10.
In McAdam Doyle CJ applied these principles when summarising the position as follows:[7]
I consider that the observations of Mason CJ and Brennan J in Autodesk provide reliable guidance in relation to the exercise of the jurisdiction. I refer in particular to their observations that the jurisdiction is not exercised to enable a party to improve upon the argument that it has put, or merely to demonstrate that a decision is wrong. However, I proceed on the basis that a misapprehension in a significant respect as to the facts or the law may be a basis for the exercise of the jurisdiction, but in the light of what I have just said that cannot be a misapprehension which would be demonstrated only by persuading the Court to change its mind on something that it had already decided. I also proceed on the basis that the jurisdiction will not necessarily be exercised in the same way by an intermediate court of appeal and by a final court of appeal, although I do not attempt to identify any relevant distinctions here. I merely make the point that, in the case of the Full Court, the ability to apply to the High Court for special leave to appeal is a relevant matter that will tend to confine the exercise of the jurisdiction.
[7] (1999) 73 SASR 360 at [38].
In the present application it was contented that significant new material arises for consideration. In a discrete application made by Mrs Garrett to set aside the July 2004 order for possession, it was claimed that new information concerning the enforceability of the mortgage underlying the July 2004 order had come to light following the Full Court appeal. This new information was said to justify the re-opening of the Full Court appeal. In addition, wide-ranging allegations of fraud on the part of National Australia Bank were said to justify the re-opening.
In Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd (No 2)[8] the application of Mrs Garrett to set aside the July 2004 order for possession was dismissed. In that application the contention was advanced that the July 2004 order for possession was based on a mortgage that did not provide security. It was concluded that there was no substance to the application. This is the new information referred to in [7] above. Mrs Garrett, and others, have unsuccessfully sought leave to appeal that decision. The issue resolved in those proceedings does not justify a re-opening of the Full Court decision in Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd.
[8] [2005] SASC 105.
As earlier observed, the other ground advanced, related to a wide sweeping allegation of fraud on the part of National Australia Bank. However, the allegation of fraud was raised before the Full Court. In the course of the reasons for judgment it was observed: [9]
The appellants, in the course of submissions, asserted fraudulent misconduct by the National Australia Bank. Affidavits of an argumentative nature contained similar allegations. These allegations lacked particularity. They lacked supporting evidence. The appellants’ bare allegations about misconduct by the Bank do not provide a basis for allowing the appeals.
[9] [2004] SASC 348 at [22].
No grounds have been identified sufficient to justify the re-opening of the Full Court appeal. So far as any new matter may have come forward, it has been dealt with in the decision refusing Mrs Garrett’s application to set aside the July 2004 order for possession. Any appeal rights from that decision that may exist, remain. Broad allegations of fraud, as earlier mentioned, were made at the time of the Full Court hearing and were before the Court. The circumstances that would justify the exceptional course of re-opening a determined Full Court appeal have not been made out.
This application is dismissed.