Danielsen v OneSteel Ltd

[2009] SASC 121

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Application)

DANIELSEN v ONESTEEL LTD

[2009] SASC 121

Reasons for Decision of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)

8 May 2009

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE

Application to reopen hearing of appeal to Full Court - applicant sought to reargue a number of issues the subject of submissions at earlier appeal hearing.

Held:  application refused - no basis to reopen appeal established - applicant only sought to reargue matters already put before Court.

McAdam v Robertson (1999) 73 SASR 360; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, considered.

DANIELSEN v ONESTEEL LTD
[2009] SASC 121

Full Court                 Gray, Sulan and David JJ

THE COURT

1. This is an application to reopen the hearing of an appeal to the Full Court. 

2. Timothy Danielsen, appealed with permission to the Full Court against the decision of a District Court Judge,[1] upholding the decision of a Master who had dismissed Mr Danielsen’s claim on the ground that the claim failed to disclose a cause of action.  Judgment in this Court dismissing the appeal was delivered on 27 February 2009.[2]  The Court’s judgment has been sealed.[3] 

   [1]    Danielsen v OneSteel Ltd [2008] SADC 56.

   [2]    Danielsen v OneSteel Ltd [2009] SASC 10.

   [3]    There is some debate about whether a judgment of the Full Court perfected by sealing can be reopened.

3. The application sought to reargue a number of issues the subject of submissions at the earlier appeal hearing.  Complaints were advanced about the judgment of the Court and it appears that those complaints are presently being advanced in Mr Danielsen’s application for special leave to appeal to the High Court. 

4. The Full Court will not reopen an appeal in other than exceptional circumstances.  In McAdam v Robertson[4] Doyle CJ drew on the following observations of Mason CJ in Autodesk Inc v Dyason: [5]

   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.

   [4]    McAdam v Robertson (1999) 73 SASR 360 at [37].

   [5]    Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.

5. Doyle CJ further observed:[6]

   The power is to be exercised with great caution. The reasons for that are obvious. There is a strong public interest in the finality of litigation. Once a stage in the process of litigation has been completed, ordinarily it should not be revisited. Our system of adversary litigation, with the obligation that it imposes upon the parties to present their whole case and to present their best case, would begin to collapse if courts too readily entertained applications to reopen decisions given after a full hearing. The power can be exercised if some important principle of law has been overlooked, or if there is an apparent misapprehension as to a significant fact, but this is to be distinguished from enabling a party to attempt to persuade a court that it should change its view of a matter that it has considered and decided.

   [6]    McAdam v Robertson (1999) 73 SASR 360 at [39].

6. Mr Danielsen did not seek to support his affidavit outlining his complaints by oral submission.  Mr Danielsen only seeks to reargue matters already put before the Court.  No basis has been established for the re-opening of the appeal.

7. This application is dismissed.