Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 2]
[2018] VSCA 203
•16 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0112
| BODYCORP REPAIRERS PTY LTD | Applicant |
| v | |
| OAKLEY THOMPSON & CO PTY LTD (No 2) | Respondent |
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| JUDGES: | MAXWELL P |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 16 August 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 203 |
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PRACTICE AND PROCEDURE – Court of Appeal – Applications – Filing – Power of Registrar – Application to reopen proceeding after judgment – Applicant had sought special leave to appeal to High Court – Special leave refused – Registrar refused to accept application for filing – Applicant sought judicial direction to Registrar to accept application – Final judgment – No power to reopen – Election – Issue estoppel – Application for direction refused – Burrell v The Queen (2008) 238 CLR 218 applied – Supreme Court (General Civil Procedure) Rules 2015 r 64.43(1), (5).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Maciel Pizzorno & Co |
| For the Respondent | No appearance | Oakley Thompson & Co |
MAXWELL P:
On 22 February 2018, the Court handed down its judgment in this proceeding (‘February judgment’).[1] Bodycorp Repairers Pty Ltd (‘Bodycorp’) had applied for leave to appeal from the judgment of an Associate Justice. The Court granted leave on one ground only, and dismissed the appeal. The order disposing of the appeal was authenticated on 23 February 2018.
[1]Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2018] VSCA 33.
On 22 March 2018, Bodycorp filed with the High Court of Australia an application for special leave to appeal from the February judgment. That application identified seven proposed grounds of appeal. Proposed ground 6 was in these terms:
The Court of Appeal denied the applicant procedural fairness because:
(a)the Court of Appeal failed to disclose that they were considering whether counsel had provoked the trial judge;
(b)the Court of Appeal failed to disclose that counsel had a conflict of interest in continuing to act and that independent counsel should be retained; and
(c)the Court of Appeal failed to consider all of the relevant circumstances including the trial judge’s associate had acted inappropriately to counsel.
On 20 May 2018, Bodycorp sought to file a document in this proceeding, entitled ‘Application other than leave to appeal’ (‘May application’). According to the application, Bodycorp wished to apply for an order setting aside the orders made by the Court on 22 February 2018, on the ground that those orders were
defective and a nullity because of a failure to accord the applicant with natural justice.
On 14 June 2018, the High Court (Gageler and Keane JJ) refused Bodycorp’s application for special leave. Their Honours said:
The application for special leave does not disclose any reason to doubt the correctness of the decision of the Court of Appeal of the Supreme Court of Victoria.[2]
[2]Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2018] HCASL 183 [1].
On 18 July 2018, the Registrar of the Court of Appeal advised the solicitor for Bodycorp that he had decided not to accept the May application for filing. In his letter, the Registrar stated:
Given that the proposed application … raises issues unsuccessfully put before the High Court on the special leave application, it is a frivolous application in that it has no prospect of success.
On 19 July 2018, Bodycorp’s solicitor responded to the Registrar’s rejection of the May application, seeking
an explanation as to the basis upon which the application documents were not accepted for filing within a reasonable period of time.
The solicitor contended that the High Court’s refusal of the application for special leave did not affect the status of the May application.
On 20 July 2018, the Deputy Registrar of the Court of Appeal informed Bodycorp’s solicitor that his request for an explanation would be treated as an application, pursuant to r 64.43(5) of the Supreme Court (General Civil Procedure) Rules 2015, for a direction that the Registrar accept the May application for filing. In accordance with that sub-r (5), the application for a direction has now been referred to me.
Consideration
The application for a direction to the Registrar must be refused. The Registrar was quite correct to refuse to accept the May application for filing.
Put simply, the proceeding in this Court was at an end and could not be reopened.[3] As the High Court reaffirmed in Burrell v The Queen,[4] once the order disposing of Bodycorp’s application for leave to appeal had been perfected, the Court had no power to reopen the proceeding. The plurality in Burrell reaffirmed the general rule to that effect stated in Grierson v The King.[5] Their Honours pointed out that there was no authority for the proposition that the ‘general rule … should be qualified according to whether there had been a denial of procedural fairness’.[6]
[3]R v McNamara [No 2] [1997] 1 VR 257.
[4](2008) 238 CLR 218 (‘Burrell’).
[5](1938) 60 CLR 431.
[6](2008) 238 CLR 218, 226 [26].
Equally clearly, no question of entertaining the May application could have arisen once Bodycorp exercised its right to seek special leave to appeal from the February judgment. In allowing that application to proceed to finalisation, Bodycorp made an irrevocable election between two mutually exclusive courses of action.[7] The special leave application could only be considered on the basis that this Court’s judgment was final and beyond recall.[8] By taking that course of action, Bodycorp foreclosed any possibility of advancing a contention that the February judgment was a nullity.
[7]Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26, 41.
[8]Judiciary Act 1903 (Cth) s 35.
Finally, and equally clearly, the issue of whether Bodycorp was denied procedural fairness in the Court of Appeal has been judicially determined — as between these parties — by the refusal of special leave. That issue having been the subject of a final determination, the doctrine of issue estoppel would have prevented Bodycorp from seeking to raise it again in this proceeding (assuming that it had otherwise been able to do so).[9]
[9]Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, 517–18 [22].
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