Dunstan v Higham (No 2)

[2016] ACTCA 28

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Dunstan v Higham (No 2)

Citation:

[2016] ACTCA 28

Hearing Date:

20 July 2016

DecisionDate:

27 July 2016

Before:

Elkaim J

Decision:

The application filed on 8 July 2016 is dismissed.

The applicant is to pay the respondents’ costs of the application.

.Catchwords:

PRACTICE AND PROCEDURE – application to set aside Court of Appeal judgment – r 1613 (2)(d) Court Procedures Rules 2006 (ACT)

Legislation Cited:

Court Procedures Rules 2006 (ACT), rr 1613(2)(d), 6906

Supreme Court Act 1933 (ACT), s 37E

Cases Cited:

Autodesk Inc v Dyason(No 2) (1993) 176 CLR 300

Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd(No 2) [2013] HCA 44
Dunstan v Higham [2016] ACTCA 20
Gray v Richards(No 2) [2014] HCA 47
Hatton v Harris [1892] AC 547
State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446

Parties:

Colin George Dunstan (Applicant)

John Higham (First Respondent)

John Growder (Second Respondent)

Robyn Orr (Third Respondent)

Richard Highfield (Fourth Respondent)

Geoff Seymour (Fifth Respondent)

Commonwealth of Australia (Sixth Respondent)

Representation:

Counsel

Self-represented (Applicant)

Mr Richard Knowles (Respondents)

Solicitors

Self-represented (Applicant)

Clayton Utz (Respondents)

File Number:

ACTCA 48 of 2014

ELKAIM J:

1. The application before me was filed on 8 July 2016. The application seeks the setting aside of orders made in the Court of Appeal on 24 June 2016 (Dunstan v Higham [2016] ACTCA 20).

1. There was some debate about whether the orders had actually been entered. However I understood all parties to say the point was not significant to the issues before me. I have proceeded on the basis that the orders made by the Court of Appeal are those stated in paragraph 161 of the above judgment.

1. The application does not state the basis upon which it is made. Accordingly, at the outset of the hearing, I asked Mr Dunstan the basis upon which he put his application. He said it was primarily made under r 1613(2)(d) of the Court Procedures Rules 2006 (ACT), but he also relied upon r 6906.

1. R 6906 cannot apply to the breadth of the orders sought. The latter is usually described as the ‘slip rule’ and classically applies to an accidental mistake or omission. The applicant here is endeavouring to set aside the whole of the judgment as being wrong. Adopting the test referred to in Hatton v Harris [1892] AC 547 at 558, the question to be asked is: if the asserted errors had been brought to the court’s attention would there have been an immediate correction? The answer must be an unequivocal ‘No’. (See also Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453). In addition, the power under r 6906 must be used with “caution” (State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29. The major ‘overhaul’ requested in this…