Hurburgh, Andrew David v Law Society of Tasmania

[1998] TASSC 163

163/1998

PARTIES:  HURBURGH, Andrew David
  v
  LAW SOCIETY OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 76/1998
DELIVERED:  23 December 1998
HEARING DATE/S:  27 November 1997
JUDGMENT OF:  Underwood J

CATCHWORDS:

Appeal and new trial - Appeal - Practice and procedure - Tasmania - When appeal lies - Time - Application to extend time to exercise statutory right of appeal - Right of appeal previously exercised - Final judgment bar to jurisdiction to extend time for second notice of appeal.

Law Society Act 1962 (Tas), s19(1).
Rules of Court, O76, r69(2) and (5) and O79, r7.
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 applied.
FAI General Insurance Company Limited and Others v Southern Cross Exploration NL and Others (1988) 165 CLR 268 referred to.
Aust Dig Appeal and new trial [145]

Procedure - Judgments and orders - Effect of judgments - Merger of cause of action - Statutory right of appeal merged in judgment by consent to dismiss appeal - No jurisdiction to extend time to permit second appeal.

Law Society Act 1962 (Tas), s19(1).
Rules of Court, O76, r69(2) and (5) and O79, r7.
Aust Dig Procedure [496]

REPRESENTATION:

Counsel:
             Applicant:                   M B Hunniford
             Respondent:              G L Sealy
Solicitors:
             Applicant:                   Hunnifords                   
             Respondent:              Piggott Wood & Baker          

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  163/1998
Number of pages:  5

Serial No 163/1998
File No LCA 76/1998

ANDREW DAVID HURBURGH v THE LAW SOCIETY OF TASMANIA

REASONS FOR JUDGMENT  UNDERWOOD J

23 December 1998

By an application dated 20 August 1998 the applicant seeks an order for an extension of time within which to appeal against an order of the Disciplinary Committee appointed pursuant to the Law Society Act 1962, s15.  The order in respect of which the extension of time is sought was made on 20 December 1996.  It provides that the applicant be struck off the Roll of Practitioners of the Supreme Court of Tasmania.  The applicant relies on the Law Society Act, s19(1) and the Rules of Court, O76, r69(2) and (5) as the source of power to make the order sought.  Section 19 provides a right of appeal to this Court from an order of the Disciplinary Committee, and directs that such right shall be exercised within the time prescribed by the Rules of Court.  The relevant Rules provide:

"ORDER 76

69 ¾ …

(2) The notice of appeal shall be served within twenty-one days from the date of the determination or such extended time as a judge may allow.
…
           (5) A judge may extend the time for appealing notwithstanding that the said period of twenty-one days has expired."

The Law Society Act 1962 was repealed by the Legal Profession Act 1993, s167, Sch 7.  The latter Act commenced on 31 December 1994 (Statutory Rule 226/94).  The matter of complaint that led to the making of the order was that on 25 August 1994 (before the repeal of the Law Society Act) the applicant was in breach of rule of practice, Statutory Rule 209 of 77, r22(7).  This Rule was, of course, repealed with the repeal of the Law Society Act on 31 December 1994, but liability for breach of that Rule is preserved by virtue of the Acts Interpretation Act, s16(1) which relevantly provides:

"16      (1) Where an Act repeals any other enactment then, unless the contrary is expressly provided, such repeal shall not ¾

(a)…

(b)…

(c)…

(d)…

(e)affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid ¾

and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had not been passed."

The application to the Disciplinary Committee was made on 1 December 1996, after the repeal of the Law Society Act, but the Disciplinary Committee appointed under that Act considered that it had jurisdiction.  In its reasons for making the order which is the subject of this application, the Committee said:

"We deal with the issue of jurisdiction. We were appointed as members of the Committee under the Law Society Act 1962 for a term of five years on 18th August 1992. -1 The Law Society Act 1962 was repealed by Schedule 7 of the Legal Profession Act 1993 with effect from 31st December 1994. That repeal does not affect any investigation, legal proceeding, liability or penalty under the Law Society Act and proceedings may be instituted and penalty imposed as if the repealing Act had not been passed. See S16(1) of the Acts Interpretation Act 1931.We are satisfied that we have jurisdiction as members of the Disciplinary Committee under the repealed Act to the extent that its operation is preserved by S16(1) of the Acts Interpretation Act, referrable to the conduct of practitioners prior to the repeal. We have no jurisdiction referrable to the conduct of practitioners subsequent to the repeal. As to conduct of practitioners since the repeal, jurisdiction is vested in the Disciplinary Tribunal constituted pursuant to the Legal Profession Act 1993. The Supreme Court also has jurisdiction."

No submission was made to me that error attended that passage of the Committee's reasons for making the order and it follows therefrom that by virtue of the same section of the Acts Interpretation Act, the applicant's right of appeal from that order is preserved.  I should add that although the Legal Profession Act, s168, Sch 8, contains transition provisions, none of them touch the matters concerning this application.

On the same day that the Disciplinary Committee made its order that the applicant be struck off, the applicant appealed to this Court in accordance with the provisions of the Law Society Act, s19 and the Rules of Court, O76, r69(2).  On 13 January 1997 an order was made by Zeeman J that the appeal be dismissed.  That order was made with the consent of the applicant.  In affidavits filed in support of this application, the applicant sets out reasons why he consented to the appeal being dismissed nearly two years ago, but for present purposes, there is no need to consider any of that material.

By way of preliminary point, Mr Sealy submitted on behalf of the respondent that as the right of appeal conferred on the appellant by the Law Society Act, s19 has been exercised, the issues that could be raised on a second appeal are res judicata and/or the applicant's right of appeal has merged in the judgment of dismissal entered on 13 January 1997.  Accordingly, submitted Mr Sealy, there is no jurisdiction to grant an extension of time to appeal pursuant to the Rules of Court, O76, r69(2) and Order 79, r7(1).  The parties agreed that I should determine the preliminary point before hearing submissions on other aspects of the application.

Counsel referred to a number of cases in which it has been held that once judgment has been entered as a consequence of a failure to comply with a pre-trial order, there is no jurisdiction to extend the time for compliance with that order, nor to set the judgment aside.  It was so held in Whistler v Hancock (1878) 3 QBD 83. The High Court took the same view in Bailey v Marinoff (1971) 125 CLR 529. Menzies J said, at 532, that cases such as Whistler v Hancock "were unquestionably rightly decided".  In Gamser v The Nominal Defendant (1977) 136 CLR 145, Barwick CJ said at 147:

"I agree that appeal no 148 of 1976 must be dismissed for the reasons which my brother Aickin has given. I regard it as unfortunate that the inherent power of an appellate court does not extend to varying its own orders when the interests of justice require it.  It is of course a most important principle, based on sound grounds of policy, that there should be finality in litigation.  However, exceptional cases may arise in which it clearly appears from further evidence that has become available that a judgment which has been given rested on assumptions that were false and that it would be manifestly unjust if the judgment were allowed to stand.  In my opinion it is desirable that the Court of Appeal should have a discretion ¾ however guardedly it might have to be exercised ¾ to reopen its judgments in cases such as that in which the needs of justice require it.  I agree, however, that the decision in Bailey v Marinoff (supra) shows that the Court of Appeal lacks that inherent power."

The issue was revisited in the United Kingdom in Samuels v Linzi Dresses Ltd [1981] 1 QB 115. In that case, the court of appeal over-ruled Whistler v Hancock. Roskill LJ said at 126 - 127:

"In my judgment, therefore, the law today is that a court has power to extend the time where an 'unless' order has been made but not been complied with; but that it is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored.  Primarily, it is a question for the discretion of the master or the judge in chambers whether the necessary relief should be granted or not."

In Australia, this question was explored in FAI General Insurance Company Limited and Others v Southern Cross Exploration NL and Others (1988) 165 CLR 268. In that case, Wilson J noted that in Goodwin v Southern Tablelands Finance Co Pty Ltd, unreported 1968 (a case relied upon in Bailey v Marinoff), Bailey and Gamser, no reference was made to a Rule of Court authorising an extension of time. His Honour observed at 285, that those cases turned on the inherent power of the court and that it appeared that the point concerning the Rule of Court was not taken. Wilson J then turned to construe the Supreme Court Rules 1970 (NSW), Pt 2, r3, which provides:

"(1)      The Court may, on terms, by order, extend or abridge any time fixed by the rules or by any judgment or order.

(2)       The Court may extend time under subrule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.

(3)       … "

Although more verbose, no point of distinction can be drawn between that rule and the Rules of Court (Tas), O79, r7(1).  Wilson J considered that the rule before him had wide operation and said, at 283 - 284:

"It is a remedial provision which confers on a court a broad power to relieve against injustice.  The discretion so conferred is not readily to be limited by judicial fiat.  The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case.  It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance."

His Honour then dealt with an argument raised with respect to New South Wales Rules, Pt 40, r9 and concluded that Pt 2, r3 conferred jurisdiction to make an order extending the time within which an act was to be done, even in a case where the failure to do that act had resulted in an order being entered dismissing the plaintiff's proceedings.

Brennan J (as he then was), Deane and Dawson JJ agreed with Wilson J.  The remaining member of the court, Gaudron J, took the same view of the relevant rule as did the others, but expressed some obiter dicta to the effect that there may be some distinction to be drawn between orders that operate as a final determination of the matters in issue and orders dismissing proceedings, but leaving it open to a party to commence fresh proceedings.  Brennan J said that there was "much force [that] view" (420).

The FAI Insurance case applies to the Tasmanian Rules of Court and in a case where a judgment is entered in consequence of a failure to comply with a condition, the Court has jurisdiction to extend the time within which the act which led to entry of judgment must be done, notwithstanding the entry of that judgment. 

However, this is not an application to extend time within which to comply with a condition, an earlier failure to do so having led to a default judgment.  This is an application to extend time to exercise a statutory right of appeal when the Court record contains a perfected order that the right has been exercised and the appeal dismissed.  This application does not seek to attack the order dismissing the appeal made on 13 January 1997, nor will the making of the order sought affect that order.  As Mr Sealy pointed out, if the application is granted and there follows a hearing on the merits, the Court record may well then contain two orders, one dismissing the appeal and one allowing it.

Had the appeal been determined on the merits, the statutory right conferred upon the applicant by the Law Society Act, s19 would have been exhausted.  See Grierson v R (1938) 60 CLR 431; R v Cartwright (1989) 17 NSWLR 243. The applicant's statutory right of appeal has been exercised and determined by a final order. No attempt is made on this application to impeach or set aside that order. If the application is granted, there will be no consequential order setting aside the order made on 13 January 1997. On the entry of that order, the rights of the applicant with respect to the order of the Disciplinary Committee made on 20 December 1996 were concluded. Nothing was then outstanding between the parties. See Carr and Another v Finance Corporation of Australia Limited (1981) 147 CLR 246. The applicant's statutory right of appeal has merged in the judgment. The matter, ie, the applicant's right of appeal, is res judicata.  See Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589. It is immaterial that the order of dismissal was made by consent. See Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; Hoystead v Federal Commissioner of Taxation (1925) 37 CLR 290. As Gibbs CJ, Mason J (as he then was) and Aickin J said in the Port of Melbourne Authority case at 597:

"The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding."

Although their Honours were there referring to the statutory right to recover contribution from another tortfeasor, the words are equally apposite, in my view, to the statutory right of appeal conferred by the Law Society Act, s19.  In Port of Melbourne Authority case at 598, the majority approved of the broad statement of res judicata expressed by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 319:

"where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies,  except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

Res judicata exists where the very "cause of action" raised in later proceedings has already been concluded by a final judgment between the same parties in earlier proceedings.  Accordingly, I am of the opinion that the applicant presently has no statutory right of appeal from the decision of the Disciplinary Committee and will remain without such right for so long as the judgment of this Court entered on 13 January 1997 remains.  It follows that there is nothing in respect of which the Court may exercise the power to extend time that is conferred by the Rules of Court.

I uphold the preliminary point taken on behalf of the respondent, but before proceeding to dismiss the application, I will give counsel an opportunity to be heard.