Glenmont Investments Pty Ltd v O'Loughlin (No 6)

[2001] SASC 287

GLENMONT INVESTMENTS PTY LTD  v  O’LOUGHLIN & ORS (NO 6)

[2001] SASC 287

Full Court:  Doyle CJ, Nyland and Martin JJ

1. DOYLE CJ, NYLAND & MARTIN JJ            The application before the Court is for an order rescinding orders made by the Court on 28 March 2001. Those orders disposed of an appeal to the Full Court. The application before the Court is made by Glenmont Investments Pty Ltd (“Glenmont”), a respondent to the appeal.

2. The appeal was against a judgment in favour of Glenmont for damages for loss suffered by Glenmont as a result of the destruction of a large replica dinosaur.  The dinosaur was destroyed by fire. At the time the dinosaur was on land belonging to the appellant, The Royal Agricultural and Horticultural Society of South Australia Inc (“the Society”).

3. The trial Judge found that the Society was liable in negligence. Without going into details, he found that the Society failed to call the fire brigade as quickly as it should once it became aware of the fire, and failed, by its employees, to use available means to fight the fire. The Judge found others involved in the fire to be liable in negligence. They were Mr Foote, the welder who started the fire, Messrs Parker and Edwards, his employers, and Mr O’Loughlin, who had contracted with Messrs Parker and Edwards for them to remove a scaffolding around the dinosaur. The fire started when Mr Foote was cutting the scaffolding.

4. On appeal we set aside the finding that the Society was liable, upheld the finding that the other defendants were liable, and reduced the award of damages.

5. If the application now before the Court is successful, Glenmont invites the Court to resume the hearing of the appeal, to deal with a submission by Glenmont to the effect that the Court erred in making certain findings of fact, or interfering with findings  made by the trial Judge. We will refer to the application as the re-opening application.

6. We assume that an argument would then be put that the Full Court should revisit the issue of whether the Society is liable to Glenmont, and that Glenmont will submit that the findings should stand.

7. The background to this is an application by Glenmont to the High Court for special leave to appeal against the decision of the Full Court. The application is to be heard within a day or two. We understand that Glenmont does not challenge our decision on damages, but only our decision that the Society was not liable to Glenmont.

8. Glenmont applied by application dated 26 July for an order that the re‑opening application be heard by a differently constituted Full Court. The Chief Justice dismissed that application:  see Glenmont Investments Pty Ltd v O’Loughlin & Ors(No 3) [2001] SASC 267. Mr Anderson QC, counsel for Glenmont, then and there made an oral application that the Full Court as presently constituted hear the re-opening application. The Chief Justice agreed to arrange for the Court to sit as soon as possible, and on the same day as the decision just referred to, 1 August 2001, a hearing was fixed for Monday 13 August at 2.15 pm.

9. A few days later Glenmont applied for an order adjourning this hearing, so that it could appeal against the Chief Justice’s order. The Chief Justice, again sitting as a single Judge, refused that application on 8 August 2001:  see Glenmont Investments Pty Ltd v O’Loughlin & Ors (No 4) [2001] SASC 275.

10. On 13 August 2001 a differently constituted Full Court refused leave to appeal against the Chief Justice’s order refusing to have the re-opening application dealt with by a differently constituted Full Court: Glenmont Investments Pty Ltd v O’Loughlin & Ors (No 5) [2001] SASC 280. Glenmont complains that it was not properly heard on that application, but that is a complaint that we can do no more than record.

11. The hearing on Monday was adjourned to today, because of applications being made to a Justice of the High Court on Tuesday 14 August.  It is not necessary to say any more about the applications.

12. Glenmont renewed its adjournment application to us. We refused to adjourn the hearing, for the reasons given by the Chief Justice in Glenmont (No 4). In particular, we do not accept that the hearing should not proceed because Glenmont claims a right to go to a differently constituted Full Court. Our view is that the re-opening application must be made to this Court, at least in the first instance. Being of that view, it would not be appropriate to desist from hearing the re-opening application.

13. Mr Holland, for Glenmont on 15 August, then elected not to put any submissions in support of the re-opening application. We assume that this was because Glenmont claims the right to put any such submissions to a differently constituted Full Court. We heard submissions in opposition to the re-opening application from Mr Curtain QC, counsel for the Society.

14. We dismissed the re-opening application.

15. Although no submissions in support of the re-opening application were put to us, an affidavit filed by the solicitor for Glenmont sets out quite clearly the matters to be argued, were the Court prepared to rescind the orders disposing of the appeal.

16. Although we have not heard submissions from Glenmont in support of the view that we should rescind our order, we considered it appropriate to dismiss the application. We think it appropriate to indicate briefly why we take that view, but we emphasise that we have not had submissions to the contrary from Glenmont.

17. For present purposes we will assume that r 84.12 of the Supreme Court Rules gives the Full Court power to rescind the sealed orders. In Copping v ANZ McCaughan Ltd (1997) 67 SASR 525 the Full Court so held, although it did not have to decide the point. It would not be appropriate to reconsider the point without the benefit of submissions. A court of five judges may be required. It is an important issue, bearing in mind that authority supports the view that at common law there is no power to recall a sealed order to permit an argument of the kind foreshadowed here, that is, an argument that involves reconsidering the merits of issues already argued and decided: see Bailey v Marinoff (1971) 125 CLR 529 at 530; DJL v Central Authority [2000] HCA 17; (2000) 170 ALR 659 at [33]-[38]. An issue may arise as to whether s 72 of the Supreme Court Act supports r 84.12, if it confers the suggested power.

18. Our view is that even if the Court has power to rescind the sealed order, we should not do so.

19. Such a power is one to be exercised with great care, bearing in mind the public interest in the orderly conduct of litigation; in the finality of decisions disposing of matters before the Court, and in the interests of justice to the parties with the benefit of such an order.

20. In our opinion the power ordinarily would not be exercised to enable arguments already put to the Court to be put again or to be put differently, or to enable arguments not previously put to be put. Nor would the power be exercised ordinarily to enable arguments to be put which can be put in the course of an available process of review or appeal; nor would the power be exercised ordinarily to enable matters already argued to be re-argued: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29; Smith v New South Wales Bar Association (1992) 176 CLR 256; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; McAdam v Robertson (1999) 73 SASR 360.

21. Having considered the arguments outlined in the affidavit filed by Glenmont’s solicitor, it appears that each of those arguments involves no more than a reconsideration of matters already argued on appeal, and decided by the Full Court. Of course, there is the further submission that the Full Court has erred, but that can hardly be a reason to rescind sealed orders. Our view is that the foreshadowed argument is a straight forward case of an attempt to persuade the Full Court that in disposing of the appeal, it went wrong on the facts.

22. There is no suggestion that the Full Court has been misled as to the issues to be decided, as to the material that it can properly consider, or that it has fundamentally misunderstood the issue before it. No error of principle is suggested. It is not suggested that the Full Court has proceeded on an erroneous premise about the issues to be decided, or has overlooked relevant rules of law. Glenmont does not submit that it was not heard on the issues decided. We do not imply that establishing any one of these matters would necessarily lead to a decision that the sealed order should be rescinded. We are speaking fairly generally, and each case must, of course, be considered on its facts and in all the circumstances.

23. Were the Full Court to rescind the sealed order, that would amount to a decision that whenever an arguable error is shown, it is appropriate for the Full Court to do so. We do not accept that this can be right.

24. Moreover, Glenmont has sought special leave to appeal to the High Court from our decision disposing of the appeal. Issues of fact rarely attract a grant of special leave, but they might do so, particularly if the Court is minded to grant special leave on some issue of principle. The availability of a right of appeal, admittedly conditional on a grant of special leave, is another reason why the Court should not rescind its order in other than an exceptional case.

25. We have prepared these brief reasons to indicate, should it become relevant before the High Court, why we dismissed the re-opening application.

26. At the outset of this latest hearing we invited Mr Holland to renew to the Full Court the application, originally made to the Chief Justice, that the Full Court as presently constituted should desist from dealing with the re-opening application.  He declined to do so.  When we refused the adjournment application, he said that he had no other application to make to the Court.  We indicate that, in our view, that is the application that logically would come first, now that the Full Court is sitting. Our view is, as we have indicated, that the Full Court as presently constituted should deal with any re-opening application.