Byrnes v Kendle (No 2) - [2010] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
BYRNES & ANOR v KENDLE (NO 2)
[2010] SASC 64
Reasons for Decision of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Vanstone)
25 March 2010
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL
Court earlier dismissed an appeal in this matter - order dismissing the appeal sealed - application for an order that the hearing of the appeal be re-opened on the basis that the Court proceeded under a misapprehension of fact - whether Court has the power to set aside a sealed order - if so, whether appeal should be re-opened and the power exercised.
HELD: appropriate to proceed on the basis that r 242 of the Supreme Court Civil Rules 2006 (SA) gives the Court the power to set aside a sealed order - the relevant issue was argued and considered by the Court in its reasons - the Court did not misunderstand the issue - the fact that, after examining factual material in more detail, it is arguable that the Court came to a wrong conclusion, is not a sufficient basis to re-open an appeal - a reconsideration of the factual issue the subject of the application might necessitate a reconsideration of the whole case on a basis not previously argued before the Court - application to re-open appeal dismissed.
Supreme Court Rules 1987 (SA) r 84.12; Supreme Court Civil Rules 2006 (SA) r 242, referred to.
Autodesk Inc v Dyason [No 2] (1992-1993) 176 CLR 300, applied.
Elliott v The Queen (2007) 234 CLR 38; Byrnes v Kendle [2009] SASC 385; Copping v ANZ McCaughan Ltd (1997) 67 SASR 525; Glenmont Investments Pty Ltd v O'Loughlin (No 6) [2001] SASC 287; McAdam v Robertson (1999) 73 SASR 360, discussed.

BYRNES & ANOR v KENDLE (NO 2)
[2010] SASC 64
Full Court: Doyle CJ, Nyland and Vanstone JJ

DOYLE CJ: On 18 December 2009 the Court dismissed an appeal in this matter: Byrnes v Kendle [2009] SASC 385. The order dismissing the appeal was sealed on 20 January 2010.
The unsuccessful appellants have applied to the Court for an order that the hearing of the appeal be re-opened to permit counsel to put further submissions on one aspect of the appeal. The submissions are to the effect that the Court proceeded on a misapprehension of fact in relation to the relevant issue.
Notice of the application was given by letter dated 23 December 2009. A formal application to the Court should have been made, but no point was taken on that.
For the reasons that follow I would not set aside the order dismissing the appeal.
Power to set aside orders
In McAdam v Robertson [1999] SASC 169; (1999) 73 SASR 360 I said at [39]:
[39]I therefore proceed on the basis that, the judgment not having been drawn up, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byrnes v Kendle (No 2)

Details

AGLC: Byrnes v Kendle (No 2) [2010] SASC 64
Case: [2010] SASC 64
Decision Date: 25 March 2010

CaseChat Overview and Summary

In the matter of Byrnes v Kendle (No 2), the appeal was dismissed by the court, and the order dismissing the appeal was sealed. The respondent subsequently applied for an order that the hearing of the appeal be re-opened on the basis that the Court proceeded under a misapprehension of fact. The legal issues before the court were whether the Court had the power to set aside a sealed order and, if so, whether the appeal should be re-opened and the power exercised.

The court considered the power to set aside a sealed order under r 242 of the Supreme Court Civil Rules 2006 (SA). The court accepted that the power exists to set aside a judgment dismissing an appeal and to exercise it, but it must be done with care, and in particular with careful attention to the public interest in the finality of litigation. The court referred to the reasons of Mason CJ in Autodesk Inc v Dyason [No 2] (1992-1993) 176 CLR 300, which provides relevant guidance on the exercise of this power. 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 court proceeded on the basis of these statements of principle and concluded that the appeal should not be re-opened and the power exercised. The court found that the appeal had been determined after it was fully heard and that there was no 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 application for an order to re-open the hearing of the appeal was dismissed.

No further orders were made by the court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am prepared to assume, without deciding, that Copping is correctly decided, and that the decision applies to r 242 of the Supreme Court Civil Rules 2006 (SA). Rule 242 relevantly provides:242 Power to correct, vary or set aside judgment(1) The Court may correct an error in a judgment at any time.(2) If satisfied that the justice of a case so requires, the Court may—(a) vary a judgment; or(b) set aside a judgment and reopen an action.Example -The Court might set aside a judgment and reopen an action if satisfied that the judgment is vitiated by a mistake.…Mr Frayne SC, counsel for the respondent, put his submissions on that basis and was content for the Court to assume the correctness of the decision. It is one thing to have the power to set aside a judgment dismissing an appeal. It is another thing to exercise it. The power must be exercised with care, and in particular with careful attention to the public interest in the finality of litigation. Relevant guidance is to be found in the reasons of Mason CJ in Autodesk Inc v Dyason [No 2] (1992-1993) 176 CLR 300. Mason CJ dissented in the result, but there is no reason to doubt the correctness of what he said about the exercise of the power. He said at 302-303: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. 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. Brennan J made a point which is pertinent to the present case at 309. He said:Here the ground on which the appeal was determined had been argued in the courts below and had been the subject of submissions in this Court. The appeal was determined after it was fully heard. That being so, I find no 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.I proceed on the basis of these statements of principle.Exercise of power

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.