L. Grollo & Co Pty Ltd v Hammond, Theo

CATCHWOEDS

Federal Court of P-ustraTia

- Jurisdictlon -

Transitional Frovisions

- Transfer of

proceedings m

Australian Industriai Court

- Whether heering

cf proceeJings

ha?

cornericed

- Nearling of

- Federal

Courr;

of Australia (Consequentlal Provisions) Act

1976, s.4.

Jurisdiction to se% aside order

- Finality gf

orders - Whether different consideraticns apply to interlocutory

orders - Whether exceptlon

i f order made on incorrecr. facts

Whether order should be varied.

G r o l l o & Co. Pty. Limited v. The0

Hsmon3 & Ors.

VG. No. W o f 1977

Before Bowen,

C.J., Nimmo and Keeiy

JJ.

Melbourne 14th TJcxxe, 1977

, , -

IN THE FEDERAL COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG No. 30 of 1977

DIVISION

GENERAL

CORAM:

BOWEN C.J., NIMMO and KEELY JJ

14th June,

1977

L. GROLLO & CO. FTY. LTD. v. THE0 IPXMOKD and kirm) and THZ ROYAL AUSTFtALIK< IIETiTU'TE OF

fiC9iTECTS

JUDGMENT.

This is an appeal against a decision of Smithers J.

given on 23rC PIarch

1977.

On 23rd July

1976 proceedings were

comenced by

L. Grollo & Co. Ptp. Ltd., the plaintiff, against The0 Hanunond

and Igor Osidacz ard The0 Hammond

& Partners (A Plrm) and The

Royal Australian Institute

of Architects, the deiendants, by

writ issued out

of the Australian Industrial Court with

statement of claim endorsed thereon.

Ey its statement

of claim. the plain-ciff stated that

the action was brought under

the Trade Eactices Act 1974. It

set forth descriptlons

of the perties and various allegations

relating to the engagement, by the p h m - c i f f , of the flrst,

second w-.d

tkira defendmts as architects to advise it in

relation to 2 t?nder and later

a contract for the constructicn of

certain houses ir~

Darwin to

be urdertaken by %he plaintiff and

a company nmec! Wlncope (Austmlla) Pty. Ltd. It further

- 2 -

set forth the purported entry into

an agreement in writing

dated 25th March

1976 between these parties. It alleged that

this agreement was

in restraint of trade and was contrary to

section 45 of the Trade Practices Act

1974. It included

allegations regarding certain architects'

fees which had been

rendered. Some

of these fees had been paid

- a figure cf

$39,936-20

was mentioned. Some fees, which had been rendered, were

outstanding and were

in dispute - a figure of

$202,034-61 was mentioned

The Plaintiff clalmed, inter alia,

a declaratlon that the

agreement was void;

a declaration that the plaintiff was

not indebted

in the sum of

$202,034-61; an order that the

thirdnamed defendant repay to the plaintiff the sum cf

$39,936-22;

and, an order varying the said agreement. It contained also

claim for damages and other relief.

Summonses were issued by the defendants seeking

to have the statement of claim struck out

on the ground that no

cause of action was disclosed and that the statement of claim was

embarrassing, and

on other grounds.

The summonses came

on to be heard before Smithers

who made orders that certain paragraphs of the statement of

claim be struck out. Other paragraphs were left

in. It becme

apparent to Smithers

J. in the course

of argument, that the

statcment of claim did disclose matters upon whlch,

if properly

pleaded, arguable and identifiable claims might well be raised

against the four defenclants.

These clams appeared to depend

the suggestion that the defendan% were parties to

a contract,

arrangement or understanding constituted by

the terms of the

memorandum and articles of the fourth defendant

and. that these

were in restraint of trade and were unenforcesble

c)r void,

notwlthstanding a purported agplicntion to the Trade Practices

- 3 -

Commission for

an authorisation and the purported issue of

an interim authorisation.

In the course of the argument concerning the

statement of claim, the fourth defendant made an oral request

that certain questions of law be dealt with before the trial

of the facts and requested the Judge to act under High Court

Rules Order 35 rule 2.

The first, second and third defendants

joined in this request. The plaintiff opposed the taking of

this course. In the result, the Judge made

an order that

preliminary questions of

law be dealt with separately. The

plaintiff did not agree with the form of questions proposed by

the defendants and on 25th October

1976 issued a sumons setting

forth the questions which it claimed should be dealt with,

on the basls

that the course ordered by the Judge had to be followed. The

I I.

questions thus raised were considered by the Judge when the

matter came

on for further hearing before him on 1st November

1976.

Broadly speaking, his Honour adopted the questions

In the

form proposed by the plaintiff. Argument took place and his

Honour proceeded to give his answers to the various questions

posed. His reasons for judgment and the order

mcorporatmg

these answers are dated 1st November

1976.

The answers which his Honour gave were considered

by the plaintiff to be unfavourable to

Its case. It decided tc

appeal.

No appeal lay from the trial Judge to

a full bench cf

the Australian Industrial Court. Accordingly, the plaiptiff, by

Notice of Motion dated 22nd November

1976, applied to the High

Court for an order that it have leave,

or alternativply special

leave, to appeal from the order of the

1 st November 1976. Thi-s

motion came

on for hearing before the

Full Court of the High

Court of Australia on 28th February

1977, and the application

- h -

was refused. A transcript of the argument is before

us. Both

Barwick C.J. and Jacobs

J. indicated during the course of

argument that the matter was interlocutory and that it was

desirable that the case should proceed to

a hearing and

determination on the facts, before the questions of law, which

had been decided upon assumed facts, were canvassed

on any

appeal.

It was pointed out that

a decision on appeal on the

questions raised and decided by Smithers J. would nct dstermine

the proceedings

It should be mentioned that

on 7th December

1976

an amended statement of claim was filed by the plaintiff. On

24th December 1976 the first, second and third defendants filed

their statement of defence, admitting some allegations

in the

amended statement of claim and denying others.

On 8th

March 1977

I -

the fourth defendant filed its statement of defence, admitting

some allegations

in the amended statement of claim and

denymg

others. On 16th March

1977 the plaintiff filed its reply

to the statement

of defence of the first, second and thlrd

defendants and on the same day filed

its reply to the statement

of defence of the fourth defendant.

On 16th March 1977, the sane day as its repiies were filed, the plaintiff issued

a summons against the defendants

seeking various orders and directions. Those which 2rz material

to this appeal were that the oreer

anr: .judgment of the 1st Novczher

1976 be negated or, alternatively, recalled; that the issue

of the validity of the ap?lication and authorisation referred

to in the order

and juagment be tried as

a separate issue;

that& the trial of such issue

all questions of fact be tried

with a jury;

that, alternatively, the order and judgment be

- 5 -

varied and that certain additional questions	be raised for
determination.

This summons which was issued in 'the Federal Court

of Australia General Division

came on before Smithers

J. sitting

as a Judge of this Court on 23rd March

1977. In his rezsons

for judgment, his Honour dealt first with

a prelirnlnary question

whether or not the Federal Court of Australia had jurisdiction

in the matter. He referred to section

4(2) of the Federal

Court of Australia (Consequential Provisions) Act,

1976. The

date of commencement of that Act was 1st February

1977 and the

jurisdiction of the Court commenced on that date. The short

question was whether the hearing

of the proceedings in the

Australian Industrial Court had commenced. If it

had, then

the statute required that it should continue in the AustraliEl

Industrial Court. If it had

not, then the Federal Court of

Australia could deal with it and was required to treat the

matter as if all things which had been done in

and In relation

to the proceedings in the Australian Industrial Court had been done in and in relation to the proceedings in this Court. His Honour on this preliminary question, formed the opinion that

the Federal Court

of Australia had jurisdiction to

hem the

matter. It should be mentioned that the preliminary question

w3s

only briefly argued before his Honour, but the representatives

of all psrties and the representative

of the Trade Practices

Comissicn, which was allowed to intervene,	211 argued in
favour of jurisdiction In thls Court.

Dealing with the matters raised by the summons

of 16th March 1977, his Honour, in his reasons for judgment,

expressed the vlew in relation

to the application for an order

that he recall

or negate his order of 1st November

1976, that if'

- 6 -

he had power to make such

an order which

he did not decide,

he would not exercise that F3wer because he saw

no reason to do

so.

Accordingly, he refused to make the order sought.

As to the request for the trial of certain matters

as a separate issue, his Honour stated that he saw no reason

for any order at that stage for

a trial of those particular

issues as separate from the whole of the case. He therefore

rejected the application

for that order.

As to the request that all questions of fact relating

to the issue referred to

in the summons be tried by

a jury,

his Honour, after referring to section

40 of the Federal

Court of Australia Act 1976, which empowers the Court or

Judge in any suit in which the ends of justice appear to

render it expedient to do

so to direct

a trial with

a jury

of a suit or

an issue of fact, stated that it had not been shown

to his satisfaction that the ends

of justice rendered it expedient

to direct trial with	a jury.	He therefore refused to make
that order.

Section 24 of the Federal Court of Australia Acs 1976 provides, subject to certain matters not material to this

appeal, that the Court has jurisdiction to hear and determine

appeals from judgments of the Court constituted by

a single Judge.

No distinction is drawn between interlocutory and final

judgrr.er?ts

(see S. 4 definition of

judgment").

The plaintiff/appellant, by its notice of appeal,

appealed from the judgment and orders

of 23-6 March 1977 and

sought an order from the

Full Court that the judgment and order

given and made

on 1st Navember

1976 be negated cr recalled or set

aside or varied; that the trial of certain issues separately

- 7 -

from others be ordered;

and that there be trial with

a jury

in regard to certain issues.

On the hearing of the appeal

before this Court,

it was submitted, on behalf

of the plaintiff/appellant, that the

order of 1st November

1976 should be recalled or negated

alternatively varied, that

an order should

be made for the trial

of separate issues and that

an order should be made

for the trial

with a jury of certain Issues. On the second day of the

hearing it was announced on behalf

of the plaintiff/appellant that it

was no longer proposed to argue before this Court

in support of

an order for the trial of separate issues

or for trial wlth

jury, The Court therefore is concerned only with the appeal against

his Honour's refusal to recall, negate or vary his judgment

and order

of 1 st November

1976.

At the outset

it is necessary to deal with the

question whether jurisdiction in the proceedings was

transferred to this Court as the learned trial Judge decided,

or whether It remained with the Australian Industrial Court.

Notwithstanding the expressed wish

of the parties that the

matter should be dealt with by this Court, this difficulty

has to be faced. This is a Court of statutory jurisdiction.

Jurisdiction cannot

be conferred by consent

of parties.

The answer to the question depends upon %he

interpretation to be placed on Section

4 of the Federal Court

of Australia (Consequential Provisions) Act, 1976.	This is
as follows:-

- a -

114.(1) The amendments made

by this Act do

not

affect the jurisdiction of

the Australlan Industrial

Court in any proceedlngs the hearing

of whlch had

commenced before the date of commencement of this

Act.

(2) Where, immediately before the date of

commencement of this Act, proceedings

In a matter

arising under

an Act speclfied in the Schedule were

pending in the Australian Industrlal C3urt but the

hearing of the proceedings had not commenced

the proceedings are, by force of this Act,

transferred to the Federal Court of

Australia on the date	of commencement of this
Act ;

the Federal Court

of Australia may hear and

determine the proceedings;

all documents filed of record

in the Australian

Industrial Court

in the proceedings shall

be transmitted to the Registrar	of the Federal
Court of Australia; and

any moneys lodged with the Australian Industrial

Court in relation to the proceedings shall be trans- ferred to the Federal Court of Australla and

dealt with as	If they had been lodged with	!
that Court;

all things done

in and in relation to the

proceedings in the Australian Industrial Court

shall be deemed to have been done

in and m

relation to the proceedlngs	in the Federal Court
of Australia.

(3)

The Federal Court of Australia has the same

powers (including powers

in respect of contempt of

court and enforclng of orders)

in respect of

an order

of the Australlan Industrial Court made, whether befoTe

or after the commencement of thls Act, under an Act

referred to In the Schedule as

If it were

an order

of the Federal Court of Australla."

The legislature might, of course, have provided

only completely new proceedings should be heard by this Court.

That is, matters where the originating process was issued out of

+ha+

this Court on or after 1st February

1977. Presumably it was

considered that this would have left

an uncecessarily large number

- 9 -

of cases which the Australian Industrial Court would continue

to hear. It appears to have been designed to bring about as

comprehensive a transfer of jurisdiction as was practicable.

The legislature might of course have provided that jurisdiction in all matters pending in the Australian

Industrial Court should

be transferred to this Court

and

thus have brought about

a complete transfer

of jurisdiction.

However, this would have raised practical difficulties. It

would have involved the transfer

of matters which may have

been part-heard before the Australian Industrial Court. Plainly

it was considered undeslrable to have

a change of Court during

the haaring of

a matter. The Australian Industrial Court remains

in existence until

a day to be fixed by proclamatior? being

day upon which no person holds office as

a Judge of that Court

(Conciliation and Arbitration Amendment Act

(?b. 3 ) , 1976,

s . 4 ) .

The solution adopted

in section 4 of the Federal

Court of Australia (Consequential Provisions) Act,

1976, which

has been quoted, is to leave with the Australlan Industrial

Court jurisdiction

in any proceedings, the hearing of which

had commenced before the 1st February

1977, and to transfer

jurisdiction to this Court where, immediately before 1st February

1977, proceedings were pending in the Australian Industrlal

Court but the hearing

of the proceedings had not commenced. The

difficulty in giving effect to this solution lies in determining

the meaning of the words Ifthe hearing

of the proceedings had not

commenced.". The word "proceedingsff may bear

a variety of

- 10 -

meanings according to the context. (See Strouds Judicial

Dictionary 4th Edn. Vol. 4 pp. 2124-2128; Federated Amalgamated Government Railway and Tramwav Service Association

v. New South

Wales Traffic Employees' Associatlon	4 C.L.R. 488; Cheney v.
Spooner 41 C.L.R. 532).

As to the distinction between

flmatterlf

and llproceedinglr

see Collins v. Charles Karshall

92 C.L.R. 529, affirmed

by the Privy Councll

96 C.L.R. 1.

In section 4(2), the words "proceedings

in a matter

arising under

an Act specified

in the Schedule were pending",

seem to refer to what is sometimes called

an action, suit

o r

cause. The words may be compared with the words "cause pendlng

in the Supreme Court of a State" used

in section 40A of the

Judiciary Act 1903 as it stood before the amendment of

1976.

(See Hooper	v. Hooper 91 C.L.R. 529).
The word Ifpending" conveys the idea that the proceedings

have been commenced, are still

on foot, and have not been

determined. (cf. James v. Robinson (1963) 37 A.L.J.R.

151).

The more difficult question is raised by the ensuing

words of section 4(2) "but the hearing of the proceedings had riot commenced". The word flhearinglt is also a word of varying

meaning depending on the context. (See Strouds Judicial

Dictionary 4th Edn.

Vol. 2 pp. 1218-9).

When used

in association with the word l%rialll

the phrase Ifat the trial

or hearing", it has been held to mean

the final determination of the matter. (Wozniak

v. Woznlak (1953)

P.179).

Where it appeared

in the phrase Ilhearirlg of any moticjn

- 11 -

or it was held to include

application for

rule

nisi. (Morgan v. Alexander L.R. 10 C.P. 184).

In the context

in which the word ffhearingff appears

in section 4(1) and (2), more than one meaning might be suggested.

It may be argued that it means the main hearlng

or trial of

the action, suit

or cause; or that it means the

hearmg of

any part of the proceedings, including the hearing of an

interlocutory application; or that

it means that each step

the proceedings has to be separately considered as to whether

it is pending, whether the hearing of it has commenced 2nd

consequently, whether

It should be transferred to this Court.

Dealing with the last of these possibilities, it

appears to us that in both section 4(1) and (2), the reference to "proceedings pending" refers to the action, suit or cause

and that where the conditions referred to

in section 4(2) exist,

the whole action, suit or cause is transferred to this Court.

It does not appear to

us that piecemeal transfers of jurisdlctlon

to hear different parts of the proceedings is contemplated by

these provisions. Furthermore, practical difficulties would

arise if this view were adopted and it is unlikely the

legislature would have intended to create

S U C ~

a result.

As to the first meaning suggested, it might be argued

that the section does not say %ainfl hearing,

or =e the word

l%rialll or some such word indicating that the hearing referred

to is the hearing which wouid lead	to the final determinaticn
of the matter.

On the other hand, it might be argued that the

terms of section

4(3) tend to support that interprettition.

However, section 4(3)

is general in its

terms. It does not appear

- 12 -

to be directed specifically to the enforcement of interlocutory

orders made by the Australian Industrial Court

in tine proceedlngs

before the final hearing of the proceedings. Although,

the first interpretation were adopted, it could possibly apply

in that way.

It should be pointed out that practical difficultles

would also arise if the first interpretation were adopted. Assuming the interlocutory proceedings before Smithers J.

had been delayed and were still part-heard at 1st February

1977,

then on this interpretation, because the main hearing had not commenced, the proceedings, i.e. the whole action, suit or cause, would be transferred by force of the statute. The same result

would follow

if the hearing of the

mterlocutory application

had been completed but judgment had been reserved and not yet

delivered by 1st February

1977. It seems that

in these

circumstances, either Smlthers J., who has

a commission as

Judge of this Court, or some other Judge of this Court, would have had to recommence the hearing of the interlocutory matter.

Doubtless a recommenced hearlng before Smithers J. might,

the parties consented, be

a very short re-hearing, using the

transcript of the earlier hearing before the Australian

Industrial Court. But the interlocutory application might

have bean pzrt-heard or heard and not determined before

a Judge

of the Australian Industrial Court who did

not receive

comdssicn 2s a Judge of this Court.

If the first interpretation

were applied,

in such a case a Judge of this Cour? would have

to have a re-hearing of the interlocutory notter.

The words in section 4(2)(e)

do cot seem apt to

cover the partial or completed hearing

of a matter, particularly

- 13 -

as section 4(2)(b)

gives a power to hear and determine but

does not expressly confer

a power to complete

an already part-

heard hearing; let alone determine	a matter whlch another Judge
of a different Court has heard.

The absence

of an express power to continue the

hearing of proceedings already part-heard before the Australian in other instances. For example, in 1946, when the Conciliation Commissioners took over much of the jurisdiction previously exercised by Judges of the Commonwealth Court of Concillation

and Arbitration, section

3 of Act No. 10 of 1947, provided

that "(2)

A Conciliation Commissioner shall continue the

hearing of and determine all matters

.... the hearing of whlch

had been commenced by the Court prior

to the commencement

of this Act

... (aid)

(3) ... shall have regard to any evidencs

given or reports made

in the hearing of that matter prior

to the comencement of

this Act."

In 1956, upon the establishment of the Commonwealth

Conciliation and Arbitration Commission after the Boilermakersf

Case, (94 C.L.R. 254; on appeal to Privy Council

(1957) A.C. 288)

section 46 of Act

No. 44 of 1956 directed the Commission "to

continue and complete the hearing and

detemination of

industrial

disputes and other matters, the hearing aid determinatlon of which

had been begun by a Conciliation Commissloner but had not beei?

completed before the commencement of this sectiontt. The

Commissim was directed Itto have regard to any evidence given

and arguments adduced during that portlon

of the hearing which

took place before the commencement

oftt

the section. When

the Flight Crew Officers' Industrial Tribunai took over certair.

- 14 -

functions of the Conciliation and Arbitration Commission

Act 101 of 1967, section 5 inserted in the Conciliation

and Arbitration Act

a new section

88T(4) which expressly

empowered that Tribunal to have regard to

any evldence given

or arguments adduced

in proceedings before the Commission

relation to the industrial question that were not completed.

We turn now to the remaining suggested interpretaticn

that is that Ifthe hearing

of the proceedingst1 refers to the

hearing of any part of the proceedings, Including the hearing

of an interlocutory application. It appears to us that the

word llproceedingsll when used in section

4(1) and when first

used in section 4(2), refers to the action, suit or cause as

a whole. The word ltproceedingsll when it is used

for the second

time in section 4(2) in association with the word

Ilhearingll,

should, we think, bear the same meaning.

In other words, we

do not consider that the legislature should be taken to have

used the same word twice

in section 4(2) with a different meaning

in each case. This interpretation of the word Ilproceedingsll

as meaning any part of the proceedings

is also consistent

with the deflnition

of the word tlproceedingl'

in section 4

of the closely related Federal Court of Australia Act

1976.

In that Act llproceedingl' is defined to mean

!la proceeding in

a Court, whether between parties

or not, and includes an incldental

proceeding in the course of, or in connection with,

a proceeding,

and also includes

an appealll.

This particular interpre*im does not produc.;

practical difficulties. Indeed, where the Australian Industrial

Court has concerned itself

in an action, suit or cause to the

extent of deciding preliminary questlons

of law, as has occurred

- 15 -

in the present case,

it would seem reasonable to conclude that

the hearing of the proceeding had commenced and not unreasonable to require that Court to continue the proceedings until they have been finally determined.

In the result, we have formed the opinion that the hearing of the proceedings had commenced before the Australlan

Industrial Court

in the sense used

in section 4 of the Federal

Court of Australia (Consequential Provisions) Act

1976 and

accordingly that the proceedings were not transferred

to this

Court. It follows that	in our view this appeal must fail for
lack of jurisdiction.

We turn now to the substantive questions raised

on the appeal. Notwithstanding our conclusion on jurisdiction,

we consider ir: appropriate to express our views	on these
questions h-hich were argued.

The first question is whether the learnec?

tri'al

Judge, assuming he had jurisdiction, had power to recall

or negate

his order of 1st November

1976. Until an order

is perfected

it may be recalled. (Re Harrisonts Share under

a Settlement;

Harrison v. Farrison (1955) Ch. 250).

However, the general rule

is that once an order is perfected, it cannot be set aside

altered otherwise than on appeal. It is common ground that the order

of 1st November 19'76 was perfected. Ineeed, an application for

leave or special leave was made to the High Court	in respect
of it.

"here are certain cases where the general rule does not apply; default orders, orders made ex parte

or by consent,

and certain orders of

a court exercislng bankruptcy jurisdiction

appear to be outside the rule. Furthermore, there are some

- I 6 -

exceptions to the rule. Thus, if the order contains

a clerical

mistake or an error arising from

an accidental slip or omission,

or if it fails in its wording to reflect the intentlon of

the court, It may

be corrected. Again, if the order was made

after a procedural irregularity

so serious as to nullify the

order, it may

be set aside. Finally, if the order was obtained

by fraud, it may be set aside.

The present case does not fall within any

of the

classes of case which are outside the general rule or which are

exceptions to the rule. However, it was argued for the

plaintiff/appellant, that there are other exceptions to the

, L

general rule. It was submitted first that although the rule

applied to final orders, different considerations applied

to interlocutory orders

and, secondly, that

even a final

;

order might

be set aside if it was

made on facts which it

subsequently appesred were not the true facts.

As t o the first of these submissions, it appears to us tht it is correct to say that the order

of the 1st

November 1976 was an interlocutory order. (Salaman

v. Warner

(1891)l Q.B. 734). But we are not persuaded that in applying

the rule, different considerations apply to interlocutory

orders. In suppcrt of the plaintiff/appellantrs argument,

reference was made to Penrlce v. Williams

(1883) 23 Ch.D. 353,

and Lewis v. Daily Telegraph Limited

(No. 2) (1964) 2 W.L.R. 736,

but nelther of these cases furnishes

any support for the

arwent.

Penrice v.

Williams was

a case of

a consent order. In Lewis v.

Daily Telegrapn Limited

(No. 2), Pearson L.J. (at p.742) approved

the statements m the Annual Practice

(1964) p.b65, that unless

- 17 -

express provision

is made for the alteration, interlocutory

orders stand

in the same position as final orders and cannot

be altered except on appeal.

A similar statement appears

in the

Annual Practice (1976) Vol. 1 p.353. See also Hall v. Nominal

Defendant 117 C.L.R. 423 at p.443.

As to the second submission, there was an initial

difficulty confronting the plaintiff/appellant

in that It

could not properly be asserted that the order of 1st November

1976 was based on one set of facts and that it had subsequently

zppeared that the true facts were otherwise. The order of

1st November	1976, which directed that certain prelimlnary
questions of	law be decided before the hearing of the facts,

and which settied those questions and set forth his

Kor,ourls

answers thereto, was based

on certain assumed facts. It is

not entirely clear what these facts were.

A statement of claim

had been filed, but

a substantial part of

it had been struck

out;.

The plaintiff had apparently prepared an amended statement of

claim which ultimately was filed

on 7th December

1976. Although

it was not filed at the

tim; of the order of

1st Novenber

1976,

it seems that

an amended statement

of claim was

in fact before

the learned trial Judge. One of the assumed facts, the

correctness of which was challenged before

us, concerned a copy

of the memorandum and articles of association

of the fourth

defendant/rrepondent which had been submitted to the Trade

Practices Commission with

an application for

an authorisation

under the Trade Practices Act

1974. It was alleged,

on behalf of

the p;aintiff/appellant, that there were ao.endmmts which had

not been disclosed to the Trade Practices Cornrnission or brought

to the attention of the learned trial Judge. However, this

- 18 -

allegation itself did not relate to

a fact which had been

litigated or determined. The assertion of the plaintiff/appellant

in substance amounted to this, that the learned trial Judge

should have formulated his preliminary questions and given his

answers upon assumptions different from those which	he had in
fact adopted.

However, leaving this difficulty

on one side, it

appears to us that the plaintiff/appellantPs submission of

law

that an order may be set aside

in the absence of fraud

If the

facts on which it was based are later found to be incorrect,

must be rejected.

For the plaintiff/appellant, reliance was placed

upon four cases: Re Bruce

(1886) 12 V.L.R. 696; McNally v. Jack

(1895) 11 V.L.R. 666; Tuckett v. Blair

(1888) 14 V.L.R.

264;

and Hall v. Harris (1900) 25 V.L.R.

455.

Re Bruce was

a case before the Court

of Insolvency:

McNally v. Jack was

a case of fraud; and Tuckett

v . Blair

concerned a consent order obtained by

a misstatement of fact

on the

part of the applicant. These cases therefore do not appear

to be directly

in point, although

in some there occurs

generality of statement about setting aside orders made

improvidently or

on facts which were withheld which may be

thought to furnish some support for the plaintiff/appellant's submissions. In Hall v. Harris the Full Court of the Victorian

Supreme

Court

decided

the

case

upon

another

ground

altogether,

although in the course of reasons for judgment, it was indicated

that they would he reluctant to say that

when a judgment had

been passed and entered, the Judge could not set aside the

judgmect if it was

fmnded wholly upon his error as to

a fact

- 19 -

and not upon any mistake as to his deliberation.

However, it appears to

us that the weight of

authority is against the proposition contended	for by the
plaintiff/appellant (In Re St. Nazaire Company	(1879) 12 Ch.D.

88 and Preston Banking Company

v. William Allsup

L+ Sons (1885)

1 Ch. 141; see Ivanhoe

Gold Corporation Limlted

v. SvuorLds 4 C.L.R.

642 at pp. 669 et seq; Crown Solicitor for New South Wzles

v. Stubbs 42 C.L.R. 312 at p. 318; Grierson v. The King 60 C.L.R.

431 at p.436; cf. In Re Barrel1 Enterprises (1973) 1 W.L.R. 19).

In our opinion, the learned trial Judge had no

power to negate	or recall his order	in the sense of settlng
it aside.

The question remains whether he had power to vary

his order of 1st Noveaber

1976.

In the summons issued on 16th

March 1977, which was before the learned trial Judge

on 231-2

March 1977, one of the orders sought was an order that the nrder

of 1st November

1976 be varied and that nineteen additional

questions be raised and determined.

In argument before us

it was contended for the plaintiff/appellant that the Judge had

jurisdiction to vary the order of

1st November

1976 and should

have done

so, although the argument

on this was not put

separately from, and indeed was confused with, the argument

that the order should be set aside.

It appears to

us that although the general rule

that an order which has been perfected cannot be set aside, the

operation of the order may,

in appropriate circumstances

be affected by

a subsequent order. Different considerations

apply in such a case. The ap?licatio? for a new orcler which

alters the operation

of the previous ordsr starts with the

assumption that the previous order was rlghtly made. There

j s

- 20 -

no question of reversing

or varying or re-hearing the original

decision or order. The question is whether, in the circumstances,

as they are later shown to exist, the applicant is entitled to

be relieved from the operation of the original order. (Woods

v. Sheriff of Queensland

(1895) 6 Q.L.J.

163, per Griffith C.J.

at p.163;

Lewis v. Daily Telegraph Limited (No.

2) (1364) 2

W.L.R. 736 per Pearson

L. J. at p.742. )

In	our view, assuming Jurisdlction, the learned

trial Judge would have had power to make an order varying

the operation of the order of 1st November

1976, but we are

not persuaded that any error has been shown on the part of the

learned trial Judge which would justify interference with his

exercise of discretion in refusing to vary it. Indeed, in all

the circumstances,

we would agree with his refusal. It appears

to us that the conduct of the litigation has already resulted

in too great an expenditure of time, effort

and money on

questions which it may

be found do not arise at all when the

actual facts are determined.

Two matters remain to be mentioned. At the comaencement of the hearing, the plaintiff/appellant tendered an affidavit

of K.A. Hercules, sworn on 24th May

1977, to which he exhibited

an agreement dated 25th March

1975 between Wincope (Australia)

Pty. Limited and L. Grolio & Co. Pty. Limited (thereinafter

called the client) and The0 Hammond Partners (thereinafter

called the architect). The affidavit also dealt with certain

other matters. Counsel for the defendants/respondents

did not

object to the admissibility of the agreement, but

did not

concede that insofar as the affidavit dealt with other matters,

the evidence should

be acbitted. The Court deferred its decision

on whether it would admit the fresh evidence. Under the

- 21 -

Federal Court of Australia Act

1976, the Court on appeal

has power

in its discretion to receive further evidence

(s.27).

This is a power which the Court will exercise

in accordance with the principles ordinarily followed by

Courts hearing appeals. In the particular circumstances of

this case, and having regard to the fact that Counsel

for

the defendants/respondents did not object to the admissibility

of the agreement,

we have come to the conclusion that the

affidavit, insofar as

it relates to the agreement, and the

agreement, shouid be admitted, but that the Court should not

accept evidence on the other matters dealt with by the affidavit.

The final matter concerns the costs of the appeal.

It was submitted

on behalf of the dafendants/respondeIrts that

if the Court were minded to dismiss the appeal,

it should

order the plaintiff/appellant to pay

the defendants/reepondents'

costs on a solicitor and client basis.

We have given

consideration to this submission and have come to the concluslon

that CO&

should follow the event, but we are not satisfied

that the Court

in this case should depart from the usual

order which it would make against

an unsuccessful appellant.

The order of the Court

will be: appeal dismissed;

order that the appellant pay the respordentsl costs.

' .

[1977] FCA 30

14 Jun 1977