Block 27 Pty Ltd v Qursa Pty Ltd (No 2)
[2024] ACTCA 25
•26 August 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Block 27 Pty Ltd v Qursa Pty Ltd (No 2) |
Citation: | [2024] ACTCA 25 |
Hearing Date: | 19 July 2024 |
Decision Date: | 26 August 2024 |
Before: | Mossop ACJ |
Decision: | 1. The application in proceeding dated 19 June 2024 is dismissed with costs. |
Catchwords: | PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Application to set aside orders of the Court of Appeal – question of practice and procedure able to be determined by single judge – where orders were drawn up, settled and signed by Registrar on own initiative – whether orders were “filed in the court” for the purposes of r 1613 of the Court Procedures Rules 2006 (ACT) –consideration of process for filing of orders under r 1606 – orders were “filed in the court” – application dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 1601, 1605, 1605A, 1606, 1613, 5001, Pt 2.16 Legislation Act 2001 (ACT), ss 146, 147(3) Rules of the Supreme Court, 1883 (UK), O 41 r 1 Supreme Court Act 1933 (ACT), s 37J Supreme Court Rules 1937 (ACT), O 38 r 24, O 42 Uniform Civil Procedure Rules 1999 (Qld) r 661 |
Cases Cited: | Block 27 Pty Ltd v Qursa Pty Ltd [2024] ACTCA 16 Director of Public Prosecutions (ACT) v AI, AD and JR [2012] ACTCA 23 Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; 75 NSWLR 462 In re Commercial Union Assurance Company (1899) 18 NZLR 585 Wiltshire v Amos [2016] QCA 280 |
Parties: | Block 27 Pty Ltd ( Appellant) Qursa Pty Ltd (First Respondent) Takeshi Pty Ltd (Second Respondent) Registrar-General of the Australian Capital Territory (Third Respondent) |
Representation: | Counsel M Pesman SC ( Appellant) R Arthur (First Respondent) M Walsh SC (Second Respondent) |
| Solicitors Moulis Legal ( Appellant) Capital Lawyers (First Respondent) RMB Lawyers (Second Respondent) | |
File Number: | ACTCA 24 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Supreme Court Before: Curtin AJ Date of Decision: 7 June 2023 Case Title: Block 27 Pty Ltd v Qursa Pty Ltd Citation: [2023] ACTSC 139 |
MOSSOP J:
Introduction
1․Judgment in the appeal in this matter was delivered on 31 May 2024: Block 27 Pty Ltd v Qursa Pty Ltd [2024] ACTCA 16. The court was comprised by Baker J, McWilliam J and myself. By application in proceeding dated 19 June 2024, the appellant seeks to set aside that judgment pursuant to r 1613 of the Court Procedures Rules 2006 (ACT) (CPR), on the basis that the appellant was denied procedural fairness.
2․At a directions hearing before the Chief Justice on 5 July 2024, it emerged that the orders made by the Court of Appeal had been drawn up in the court registry, signed by the Registrar, and recorded as having been entered on 31 May 2024. In light of that fact, there was a more significant issue as to whether or not the Court had the power to reopen the matter and set aside its own decision.
3․At the hearing before me, all parties submitted that it was appropriate to first address whether or not the Court of Appeal had jurisdiction to entertain the application in circumstances where the orders of the court had been drawn up in the registry, signed by the Registrar and entered. Further, all parties indicated that they had no objection to that issue being determined by a single judge constituting the Court of Appeal. In the event that the court had jurisdiction, then it would be appropriate for directions to be made as to the conduct of the application.
Who should deal with the issue?
4․I consider that, consistent with the approach taken by the parties, it is appropriate for the issue of the court’s jurisdiction to be determined by a single judge. Section 37J of the Supreme Court Act 1933 (ACT) provides that the Court of Appeal may be constituted by a single judge for hearing and deciding “any other question of practice and procedure in the Court of Appeal”: s 37J(1)(k). In my view, the question of whether or not a particular application in proceeding falls within the scope of the CPR and, hence, within the jurisdiction of the court, is a question of practice and procedure which may be dealt with by a single judge, pursuant to s 37J.
5․Notwithstanding the fact that the present issue falls within the scope of matters in which the Court of Appeal may be constituted by a single judge, it would be open to me to refer the application to a bench of three judges: Director of Public Prosecutions (ACT) v AI, AD and JR [2012] ACTCA 23 at [7]. Having regard to the attitude of the parties, I consider that it is not appropriate to make such a referral and will, therefore, deal with the application myself, pursuant to s 37J.
What do the Court Procedures Rules provide?
6․The relevant rules are those in Pt 2.16 of the CPR. These are applied to appellate proceedings which are civil proceedings by r 5001. The relevant rules are as follows:
1601 Judgment book
(1)The registrar of the Supreme Court must keep a judgment book.
(2)The judgment book may be kept in electronic form.
(3)The registrar must record in the judgment book—
(a)the distinguishing number or other unique identifier given to the proceeding for which a judgment is entered under rule 71 (Numbering etc of proceedings); and
(b)the judgment in the proceeding; and
(c)the date the judgment was entered; and
(d)the other information the court directs.
(4)The registrar may record any other information in the judgment book.
…
1605 Orders—making and effect
(1)An order of the court is made by the order—
(a)being pronounced in court by the judicial officer making the order; or
(b)being recorded, in accordance with the court’s practice, as having been entered.
Note Order is defined in the dictionary to include judgment (see also def made).
(2)An order takes effect on the day that the order is made.
(3)However, the court may order that the order takes effect on an earlier or later date or at any earlier or later time.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order under r (3).
1605A Orders—shortened form
If an order of the court is expressed to be the usual order or is otherwise in shortened form, the full terms of the order must be included when the order is entered or filed in the proceeding.
Examples
1 Rule 732 (Division 2.9.4 order—damages and undertaking as to damages) requires the usual undertaking as to damages to be given.
2 Rule 1622 (Interest after judgment—usual order as to interest) provides for the usual order as to interest.
1606 Orders—filing
(1)If a judicial officer or associate writes the date and terms of an order on a court file or document on a court file, then, unless the order is filed in the court, the writing is sufficient proof of the making of the order, its date and terms.
(2)An order of the court is filed in the court if a document embodying the order, and the date the order was made, is drawn up, settled and signed by the registrar, and filed in the court.
(3)The party in whose favour an order is made may, not later than 7 days after the day the order is made, file in the court a draft order for settling by the registrar.
Note See
•approved form 2.41 (General form of judgment—civil proceeding) AF2015‑30
•approved form 2.42 (General form of order—civil proceeding) AF2015‑31.
(4)If a draft order is not filed in accordance with subrule (3), another party to the proceeding may file in the court a draft order for settling by the registrar.
(5)If a draft order is filed in the court under this rule, the registrar—
(a)may approve the draft with or without amendment; and
(b)must enter the order on the filing of the final order in accordance with the approved draft.
(6)An order must be filed in the court if—
(a) the order is a judgment or other final order; or
(b) the court directs it to be filed; or
(c) a party asks for it to be filed.
(7)Unless an order is filed in the court—
(a)the order may not be enforced under part 2.18 (Enforcement) or by other process; and
(b)an appeal may not be brought against the order without the leave of the court to which the appeal would be made.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.
(8)However—
(a)an order appropriate on default of an earlier order may be made without the earlier order being filed in the court; and
(b)costs payable under an order may be assessed without the order being filed in the court.
…
1613 Orders—setting aside etc
(1)The court may amend or set aside an order before the filing of the order.
Note 1 Order is defined in the dictionary to include judgment (see also def made).
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
(2)The court may set aside an order at any time if—
(a)the order was made in the absence of a party; or
(b)the order was obtained by fraud; or
(c)the order is for an injunction or the appointment of a receiver; or
(d)the order does not reflect the court’s intention at the time the order was made; or
(e)the party who has the benefit of the order consents; or
(f)for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.
(3)If the court sets aside an order, it may also set aside any order made to enforce the order.
(4)If the court sets aside an order under subrule (3), the setting aside of the order does not affect the title to any property sold under the order before it is set aside.
(5)This rule does not apply to a default judgment.
Note See r 1128 (Default judgment—setting aside etc) in relation to setting aside a default judgment.
The submissions of the appellant
7․Counsel for the appellant submitted that there was a live question about the jurisdiction of intermediate appellate courts to reopen decisions for procedural fairness reasons. He made a formal submission that the court did have such a power. However, he accepted, for present purposes, that the preponderance of authority was against any power to reopen. It is, therefore, not necessary to address this formal submission any further.
8․Counsel then developed an argument based upon the terms of the CPR. He accepted that orders were entered on 31 May 2024, even though the parties did not know of that fact. He submitted that there was a distinction to be drawn between “entry” and “filing” and noted that r 1605A draws such a distinction. He accepted that if “entered” and “filed” mean the same thing, then the court would not have jurisdiction. On the other hand, if the words are intended to be read as having different meanings, then the terms of r 1613(1) have the effect that because neither party “filed” the order, then the court would have jurisdiction.
The submissions of the respondents
9․Counsel for the second respondent submitted that the order in question was filed by the Registrar in accordance with r 1606(2). If that was accepted, he submitted, then the distinction between “filed” and “entered” fell away. Rule 1606(2) had the effect that the order of the court had been filed for the purposes of r 1613(1) and that, subject to any relevant statutory provision, the judgment was beyond recall by the court. He submitted that none of the circumstances in r 1613(2) applied. In the absence of any applicable rule, he submitted that it was not open to the court to arrogate to itself inherent power to reopen orders: Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; 75 NSWLR 462.
10․Counsel for the first respondent adopted the second respondent’s submissions.
Consideration
11․The Supreme Court Rules 1937 (ACT) (1937 Rules) were derived principally from the Rules of the Supreme Court 1883 (UK) (1883 Rules). That is made clear by the annotations in the rules as they were made: Commonwealth Statutory Rules No 85 of 1937. Order 42 of the 1937 Rules provided an internally coherent scheme, based in part on the Victorian rules and in part on the 1883 Rules, for the entry of judgment by the Registrar in a judgment book. Those judgments and orders were required to be prepared by the party entitled thereto or by such party as the court or judge directed.
12․By the time the 1937 Rules were repealed in 2006, although they had been amended in the intervening decades, they had largely retained their coherence and remained based, in most cases, upon the parties filing orders to be settled and entered by the Registrar.
13․The CPR, made in 2006, drew their inspiration from a variety of sources, including, most significantly for present purposes, from the Uniform Civil Procedure Rules 1999 (Qld) (Queensland Rules). Republications of the CPR, up until republication 28 in September 2011, included notes under the headings to each rule indicating the sources of drafting inspiration for that rule. While many of the rules simply had a single reference to a rule found in the 1937 Rules, ominously, r 1606 contained references which pointed to seven different rules from three different jurisdictions – Piltdown Man comes to mind. However, of these different sources, two appear to be dominant. The principal inspiration for each of the subrules of r 1606 can be summarised as follows:
Rule 1606 Source (1) Queensland Rules r 661(1)
1937 Rules O 38 r 24
(2) Queensland Rules r 661(2) (3) 1937 Rules O 42 r 2(1) (4) 1937 Rules O 42 r 2(2) (5) 1937 Rules O 42 r 2(3) (6) Queensland Rules r 661(3) (7) Queensland Rules r 661(4) 14․It is also clear that the drafting inspiration for r 1613 came, principally, from r 667 of the Queensland Rules.
15․Of particular relevance for present purposes is to note that subrule (2) on the one hand, and subrules (3), (4) and (5) on the other, are derived from rules of different jurisdictions.
16․Rule 661 of the Queensland Rules, which provided the source for r 1606(2), had a clear scheme which made no reference to any obligation on a party to draw up the court’s order. Further, those rules referred to the “filing” of orders, rather than the “entry” of orders, in a judgment book. In contrast, the 1937 Rules were based around a judgment book and contained a process whereby a party drew up a draft of the order and, once that order was approved by the Registrar, it was entered in the judgment book.
17․While different parts of r 1606 have been drawn from different jurisdictions, it is apparent that insufficient effort has been made to integrate these parts in a manner that reflects the sort of coherent scheme that might be expected had the rule been the product of a single mind.
18․However, rr 1601, 1606 and 1613, as they have been made, must be interpreted as a whole. Engaging in that exercise, a reasonably functional scheme can be derived from the rules, despite the mixed heritage, as the drafter has done just enough to make the various components work together.
19․The following seven observations allow that conclusion to be reached.
20․First, in rule 1601 there is no reference to the “entry” of orders in the judgment book, notwithstanding that was the language used in O 42 r 1(3) of the 1937 Rules as at the time of their replacement by the CPR in 2006 (“Each judgment shall be entered … in the judgment book …”), that language being derived from O 41 r 1 of the 1883 Rules (“Every judgment shall be entered … in the book …”). Rule 1601 describes a judgment book and is expressly derived from O 42 r 1 of the 1937 Rules but, instead, refers to the obligation of the Registrar to “record” judgments in the judgment book. Having regard to the terms of O 42 r 1(3), the reference to “record” should be understood as if it were “enter”. That is because the change in language between the old and new rules is best understood as simply representing a change in drafting style, rather than a deliberate change to abandon the concept of “entry” of orders in the judgment book: Legislation Act 2001 (ACT), s 147(3). Notwithstanding the change in drafting reflected in r 1601, that change has not been carried through to later rules such as r 1606(5)(b) which refer to the “entry” of an order (“must enter the order”) in a manner obviously intended to refer back to entry in the judgment book. The scheme retains the basic idea that orders, when perfected, would be entered in the judgment book.
21․Second, the relationship between r 1606(2) and rr 1606(3) and (4) is important, as these subrules are derived from different sources: the first coming from a system of “filing” of orders and the second coming from a system of “entry” of orders.
22․Third, O 42 r 2(1) imposed an obligation on the party in whose favour an order was made to file a draft of the order (“the party … shall”). The current subrules (3) and (4), however, reflect a process which is not mandatory. Both subrules use the word “may” to indicate a discretionary process that can, but does not have to be, adopted by the party referred to: Legislation Act, s 146.
23․Fourth, subrule (5) is based upon former O 42 r 2(3), which operated when a draft of the order had been “lodged with the registrar”, reflecting the process by which the parties were required to draw up the orders (“Where a draft of a judgment or order is lodged …”). The difficulty with this subrule is that it provides an express link back to entry of the order in the judgment book through the use of the word “enter” (even though there is no express reference to the judgment book). That results in an internal incongruence because there is no equivalent link back to entry of orders (in the judgment book) in subrule (2).
24․Fifth, the reference in rule 1605A, which was inserted in 2015, to orders being “entered” or “filed”, reflects the confusion of the drafter as to the significance of these distinct concepts. That confusion is reflected and resolved by referring to both. Having regard to the content of rule 1605A, the confusion is of no significance. Rule 1605A does not affect the proper interpretation of r 1606 and, in particular, the operation of r 1606(2) for the purposes of r 1613(1).
25․Sixth, it is apparent that in r 1606 there are two different uses of the expression “filed in the court”.
26․In subrule (2), the expression “filed in the court” (first appearing) is defined by the content of the balance of the subrule. The rule is in the nature of a definition. The expression “filed in the court” (second appearing) must refer to the placement of the order on the court file, as distinct from the delivery of the order to the registry by a party, because the latter meaning would otherwise make no sense in the context of the order having been settled and signed by the Registrar. That former meaning, placed on the court file, is consistent with the “primitive sense” in which the word “filed” can be used: see In re Commercial Union Assurance Company (1899) 18 NZLR 585 at 588.
27․In subrule (5), when “filed in the court” is used in the chapeau (“If a draft order is filed in the court …”), that expression must be used in the sense of “delivered to the registry” because it is a draft document prepared by one of the parties. It uses the word “filed” in its “popular and usual sense”: In re Commercial Union Assurance Company at 588. In contrast, the reference to filing where it appears in subrule (5)(b) (“the filing of the final order”) must be understood as the “primitive sense” of the word, namely, placing the document on the court file.
28․Seventh, the effect of approval by the Registrar of the draft of the order pursuant to subrule (5) is that the requirements of subrule (2) will also have been complied with. That is because, with the involvement of the parties, the order will have been drawn up, settled and signed by the Registrar and placed on the court file.
29․In light of these matters, subrule (2) can be seen as the dominant provision determining when an order is filed. It may operate either through the order being drawn up in the registry, approved and signed by the Registrar or through a party providing a draft of the order to the Registrar which is then approved, signed and placed on the file. Even though subrule (2) (in contrast to subrule (5)) makes no reference to entry or recording of the order under r 1601, the terms of r 1601 indicate that this must occur in any event.
30․The operation of r 1613(1) is defined by reference to the time of the “filing” of the order. Whether or not the order is drawn up in the registry and signed by the Registrar or a party provides a draft of the order which is then approved and signed by the Registrar, if the order has been finalised and placed on the court file, then that satisfies the requirements of r 1606(2) and filing has occurred.
31․In the present case, the order of the court was drawn up in the registry, settled and signed by the Registrar and placed on the court file. That was sufficient for it to be “filed in the court” for the purposes of r 1606(2). This marked the time at which the “filing of the order” occurred for the purposes of r 1613(1) and had the result that any amendment or setting aside of the order could not occur pursuant to r 1613(1).
32․As a consequence, there is no power under the relevant rule to amend or set aside the decision of the Court of Appeal, and in those circumstances the application in proceeding is incompetent and must be dismissed.
33․This conclusion is consistent with the decision of the Queensland Court of Appeal in Wiltshire v Amos [2016] QCA 280. In that case, an order of the Court of Appeal had been drawn up in the registry and signed by the Registrar. The question raised was whether that practice resulted in the filing of the order or whether it is only a document which is drawn up by a party which will suffice. By the time of this decision, the terms of r 661 of the Queensland Rules had been amended from those which existed at the time when the CPR were drafted. A requirement had been inserted that the order be drawn up by a party, r 661(2) providing: “An order of a court is filed in the court if a document embodying the order and the date the order was made is drawn up by a party and signed by the registrar”. Notwithstanding the requirement of the rule that the order be drawn up by a party, it had, in fact, been drawn up by the Registrar and one of the parties was concerned that this meant that the requirement of the rule had not been complied with. Philip McMurdo JA referred to the amendment that required the parties to have drawn up the order and said:
The evident purpose of the amendment was to place the burden of the task of drawing up the order upon a party. It cannot be supposed that this amendment was made in order to enhance the accuracy of the document which becomes the filed order. Nor was it to ensure that the filed order accorded with the parties’ understanding of what had been ordered, because the document is to be prepared by only one party.
Having regard to the purpose of the rule, it should not be construed as invalidating the current practice under which the registry in matters in the Court of Appeal assumes the burden of the preparation of the document. The purpose of the rule is not compromised by the filing of orders in accordance with the current practice. The registrar may insist on the document being drawn up by a party but may also decide to sign and place on the file a document drawn up within the registry.
34․Thus, even where the relevant rule expressly required the order to be drawn up by a party for signing by the Registrar, an order prepared in the registry and signed by the Registrar was taken to be a valid one and, hence, taken as filed for the purposes of r 661. If that is the case in circumstances where the requirement that the order be prepared by a party is a mandatory one, then the position is a fortiori where, as in the Territory, the drawing up of the order by a party is now a discretionary adjunct to the rule which describes the circumstances in which an order will be taken to be “filed in the court”.
Costs
35․It is appropriate that costs of the application follow the event.
Orders
36․The orders of the Court are:
1.The application in proceeding dated 19 June 2024 is dismissed with costs.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 26 August 2024 |
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