Donnelly v Australia and New Zealand Banking Group Ltd (No 2)

[2015] NSWCA 41

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Donnelly v Australia and New Zealand Banking Group Ltd (No 2) [2015] NSWCA 41
Hearing dates:	02 March 2015
Date of orders:	02 March 2015
Decision date:	02 March 2015
Before:	McColl JA at [1]; [8] and [11] Macfarlan JA at [2] Leeming JA at [9]
Decision:	Ms Donnelly’s Notice of Motion is dismissed with costs.
Catchwords:	PRACTICE AND PROCEDURE – judgments and orders – where UCPR rr 36.15, 36.16, 36.17 are inapplicable and the Court’s orders have not been procured by fraud, the Court has no jurisdiction to set aside those orders after their entry – Bailey v Marinoff 125 CLR 529 followed
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.17
Cases Cited:	Achurch v The Queen [2014] HCA 10; 88 ALJR 490 Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 Bailey v Marinoff [1971] HCA 49; 125 CLR 529 Goater v Commonwealth Bank of Australia [2014] NSWCA 382
Category:	Procedural and other rulings
Parties:	Fiona Marie-Therese Donnelly (Appellant) Australia and New Zealand Banking Group Ltd (Respondent)
Representation:	Counsel: K Ryan (Appellant) J Foley (Respondent) Solicitors: Appellant (self-represented) Gadens Lawyers (Respondent)
File Number(s):	CA 2013/372887
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: New South Wales Citation: Australia and New Zealand Banking Group Ltd v Donnelly [2013] NSWSC 1760 Date of Decision: 29 November 2013 Before: Stevenson J File Number(s): SC 2011/305340

Judgment

1. McCOLL JA: I invite Macfarlan JA to deliver the first judgment.

2. MACFARLAN JA: This is an application by motion to reopen an appeal that was dismissed by a judgment of this Court of 9 May 2014. The Court’s orders were entered shortly after that judgment was delivered. Subsequently the appellant, Ms Donnelly, applied for and was refused a grant of special leave to appeal to the High Court.

3. By the present application, Ms Donnelly seeks to raise two points of law that she acknowledges were not raised in the earlier proceedings in the Equity Division, this Court and the High Court. Her Notice of Motion was filed long after the expiry of the 14-day period after the entry of judgment allowed by Uniform Civil Procedure Rule 36.16 for application for variation of orders. Moreover, her motion does not relate to any possible application of the slip rule (see UCPR 36.17), there is no basis for thinking that the order dismissing her appeal was made irregularly, illegally or against good faith (see UCPR r 36.15) and there is no allegation that the Court’s order was obtained by fraud.

4. By reason of these circumstances, this Court does not have any jurisdiction to entertain Ms Donnelly’s application. This is clearly established by Bailey v Marinoff [1971] HCA 49; 125 CLR 529 where Barwick CJ observed:

“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” (at 530).

5. This decision has been followed in many subsequent decisions of the High Court and this Court. Recent applications of it have included the decisions of the High Court last year in Achurch v The Queen [2014] HCA 10; 88 ALJR 490 at [17] and of this Court in Goater v Commonwealth Bank of Australia [2014] NSWCA 382 at [17]. The decision in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 does not contradict these authorities as the orders in that case had not been entered when application was made for variation.

6. As a result of this conclusion, it is unnecessary to deal with the two points of law that Ms Donnelly unsuccessfully sought to raise. I would observe however that they do not, in any event, appear to have had any merit.

7. For these reasons, I propose that Ms Donnelly’s Notice of Motion be dismissed with costs. I reject Ms Donnelly’s submission that her motion should have been brought in the Equity Division and that this Court should remit it there, undetermined.

8. McCOLL JA: I agree with Macfarlan JA’s reasons and the orders his Honour proposes.

9. LEEMING JA: I also agree with Macfarlan JA’s reasons and would add only this: The authorities binding this Court disclose a clear distinction between the limited jurisdiction to reopen when orders have been made but not entered (or perfected) and the absence of jurisdiction to do so when orders have been entered (or perfected), save in cases of fraud or statute. Both Bailey v Marinoff and Autodesk Inc v Dyason (No 2) expressly deal with that distinction. There is no sound basis for saying that the latter case impliedly overrules the former. It is not necessary to say anything about either (a) the adequacy of the explanation for the eight month delay in bringing the application or (b) the merits of the submissions sought to be advanced.

10. I agree with the orders proposed by Macfarlan JA.

11. McCOLL JA: The orders that Macfarlan JA proposed are those of the Court.

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Decision last updated: 09 March 2015