Cook, Quentin Redvers v Australia Postal Corp
[1997] FCA 597
•30 MAY 1997
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - FUNCTUS OFFICIO.
Hassell; Re Quirk [1937] 37 SR(NSW)
Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women [1949] 49 SR (NSW)
Arnett v Holloway [1960] VR 22
Halsbury’s Laws of England 4th ed Vol 2 at par 613 and Vol 26
Ivanhoe Gold Corporation Ltd v Symonds [1906] 4 CLR 642
Ainsworth v Wilding (1896) 1 Ch 673
Grierson v The King [1938] 60 CLR 431
Spooner v Spooner (1956) 73 WN (NSW) 353.
Bailey v Marinoff [1971] 125 CLR
Meier v Meier [1948]1 All E.R. 161
Hutchinson v Nominal Defendant [972] NSWLR 443
Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
QUENTIN REDVERS COOK -V- AUSTRALIA POSTAL CORPORATION
No. NI 4428 of 1995
Before: Judicial Registrar Locke
Place: Sydney
Date: 30th May 1997
FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 4428 of 1995
BETWEEN:
QUENTIN REDVERS COOK
Applicant
AND:
AUSTRALIA POSTAL CORPORATION
Respondent
MINUTES OF ORDERS
Judicial Registrar Locke 30 May 1997
THE COURT ORDERS THAT:
That the matter be referred to a Judge of this Court for further directions.
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL DIVISION
NEW SOUTH WALES DISTRICT REGISTRY
NI 4428 of 1995
BETWEEN:
QUENTIN REDVERS COOK
Applicant
AND:
AUSTRALIA POSTAL CORPORATION
Respondent
REASONS FOR DECISION
THE APPLICATION
On 19 March 1997, I published the judgment in this matter. Mr King of Counsel made submissions in relations to the awarding costs at large. The application did not specifically refer to costs incurred after the respondent sought and was granted leave to re-open its case on 4th July 1997.
Subsequent upon making this order, directions were given as to the service of statements which were foreshadowed as being crucial to the respondent’s case.
From the bar table, Mr Watson of Counsel informed the Court the makers of these statements were to be various relevant post office managers of the respondent. The Court directed they be probative of no other issue but reinstatement. Mr Watson, assured the Court this could and would be undertaken in the limited period specified, albeit with difficulty.
-1-
Part of the deliberation in arriving at a decision in the matter led to a conclusion that it was not a matter in which costs should be awarded. Attention was focused upon the specific point which is the subject matter of the present application.
On balance, I came to the view, (maybe erroneously) that it would be appropriate to exercise my discretion not to make an order for costs in the applicant’s favour in respect of the re-opening of the case. This decision was made appreciating, that the respondent did not comply with the orders of the Court; nor was the proposed material manifested.
One of the orders made on the 4th July and was that the 11 July, 1996 be the day appointed for the Court to hear the foreshadowed evidence. Mr King of Counsel was unable to appear on that day (for good and cogent reasons). I was reluctant for the case to proceed without Counsel who had appeared for the applicant in the great majority of the applicant’s substantive case. I indicated this to Mr Dominello, Solicitor for the applicant and Mr Bolton for the respondent. The former had announced his appearance in the matter.
Mr Bolton was prepared to proceed with what he described as the respondent’s “pared” case. Although, it appeared to me that he had some sympathy with the applicant’s predicament. However, it must be made abundantly clear there was no consent to the course that was taken - that is, the matter was adjourned to the 12th July, 1997 when Mr King was available.
That was the state of play when I arrived at my decision on the question of costs.
It is my view that having delivered judgment on 17th March, 1997, I had discharged any duty or obligation I had in relation to the matter. It had been adjudicated upon an award given. I became functus officio.
Having heard and received the submissions in relation to the present application, I have not been compelled to change this view. Counsel for the respondent did not argue that the Court was functus officio.
-2-
It is plain from the law on the subject that the instant application does not fall within one of the exceptions to the strict application of the rule - no clerical mistake, error, accidental slip or omission was involved. Thus there can be no exercise of the Court’s inherent power to alter or correct those orders made on 19th March last.
During submissions made by Counsel on 21st May, 1997. I invited the parties to consider whether they would prefer the matter to be adjudicated by a Judge of this Court. This was received favourably by the applicant. The respondent was not so partial.
Having given due consideration to the question. It is my view that the matter be remitted to a Judge for further directions, to deal with it as he or she sees fit. It might well be that a review be appropriate should an application be successful to extend time.
THE LAW
All things must eventually come to an end. And so it is in litigation between parties, either in a court of administrative tribunal. The concept of functus officio has developed from that philosophical precept.
The phrase functus officio literally means “having discharged a duty” and derives from the Latin functio meaning “a performance or performing” and officio meaning “duty or obligation”. Thus, the legal concept evolved that a duty once performed by a court was complete and was prevented from being re-performed or amended in any way.
In Ex parte Hassell; Re Quirk [1937] 37 SR(NSW))192, Davidson J, with whom Street and Maxwell JJ concurred, said at 195;
“It is established by the cases to which reference has been made that, when an arbitrator or judicial officer has give his award or adjudication, as the case may be, he or she is functus officio, and cannot add to, amend, or detract from what he has done.”
-3-
The common law position thus stated in Ex parte Hassell was followed in the Supreme Court in Banco in Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women [1949] 49 SR (NSW) 300 and in which Jordan CJ, speaking for the Court, added that the “rule applies to Judges exercising judicial authority conferred by statute, unless otherwise provided by statute”. So, the application of the common law doctrine of functus officio to courts such as the Industrial Relations Court of Australia, would not seem to be in doubt - a perusal of the provisions of the Industrial Relations Act 1988 or its successor the Workplace Relations Act 1996 do not disclose any provision or otherwise deny the application of the doctrine or rule.
Perhaps like most, if not all, rules, exceptions to its strict application have developed. The “slip rule” constitutes the major exception to the general rule of functus officio and admits corrections in respect of a clerical mistake or an error arising from an accidental slip or omission. A detailed consideration of the slip rule is contained in Arnett v Holloway [1960] VR 22. Apart from the slip rule, there is also recognised, at least for a court but which may be doubted for an administrative body, an inherent power after judgment to correct an order so as to give effect to the court’s true meaning and intention. In the absence of a relevant “slip” or imperfect formulation of the true intent, the remedy for correction must and can only be by way of appeal, where available, or, perhaps, by a fresh action of the matter which is not estopped in some way such as being res judicata (that is the subject matter has been adjudicated upon). Halsbury’s Laws of England 4th ed Vol 2 at par 613 and Vol 26 at pars 566, 557.
In Ivanhoe Gold Corporation Ltd v Symonds [1906] 4 CLR 642 at 670, Higgins J referred to with approval what was said by Romer J in Ainsworth v Wilding (1896) 1Ch 673 at 676 as to the exceptions from the functus officio rule as follows:
“So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgment are these: (1) Where there has been an accidental slip in the judgment drawn up ...; (2) When the court itself finds that
-4-
the judgment as drawn up does not correctly state what the court actually decided and intended.” Probably also, he says, the court can act by the consent of the parties: In re Swire; Mellor v Swire (30 Ch D 239).”
It may be added that a court would seem to have an inherent jurisdiction also to correct an order made ex parte or a judgment procured by fraud, albeit in such latter case it has been held it is necessary for a fresh action to be commenced. Grierson v The King [1938] 60 CLR 431 at 436 per Dixon J; Spooner v Spooner (1956) 73 WN (NSW) 353.
Thus far, the functus officio rule as above stated would seem to be settled by law. A somewhat recent example of its application arose before the High Court of Australia in Bailey v Marinoff [1971] 125 CLR 529 in which the court (Barwick CJ, Menzies, Owen and Walsh JJ, Gibbs J dissenting) held that there was no inherent power in a court to deal further with an appeal which had already been dismissed by formal order. It was observed by Barwick CJ 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.”
To similar effect, Menzies J.stated at 531 and 532;
“However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end”.
However, in a dissenting judgment, Gibbs J, as he then was, reviewed the authorities and referred in particular to the judgment of Evershed LJ in Meier v Meier [1948]
1 All E.R. 161 at 89, 95, in which his Lordship said;
-5-
“I prefer not to attempt a definition of the extent of the court’s inherent jurisdiction to vary, modify, or extend its own orders, if, in its view, the purposes of justice require that it should do so”.
It was thereupon stated by Gibbs J Bailey v Marinoff (Supra);
“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 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 purpose of justice require that it should do so”.
Whether “the purposes of justice” will, even perhaps in a more refined way rather than a judicial discretion at large, become an exception to the functus officio rule must remain moot.
It is fair to say that the functus officio concept has not been a significant matter raised in industrial jurisprudence, but it has arisen from time to time. In any case, the existence of the rule would seem to require the Court to be sensitive to it in the performance of its functions so as to avoid undesirable delay or frustration in matters which may, and often do, have significant public interest implications. Cognizance has been taken of this principle instantly.
Before consideration may be given to the application of the rule in any particular case, it is necessary to first determine the duty entrusted to a judicial officer, as the case may be, because unless and until that “duty” has been performed there is no room for the rule to operate. In other words, the functus officio concept is referable only where the duty concerned has been finally performed, by a relevant order or award or decision, and not where some mere interim or preliminary conclusion has been reached; an interlocutory order may be set aside. Hutchinson v Nominal Defendant [972] NSWLR 443; Douglas v John Fairfax and Sons [1983] 3 NSWLR 128 at 134,135.
-6-
I certify that the preceding six (6) pages are a true copy of Reasons for Judgment herein of Judicial Registrar Locke.
Legal Assistant: _____________
Claire McAuley
Dated: 27th May 1997
Appearances:
Counsel for the Applicant: Mr King.
Solicitor for the Applicant: Etherington & Associates
Counsel for the Respondent: Mr Newell
Solicitor for the Respondent: Sparke Hellmore
0
0
0