MacQuarrie v Hunter New England Local Health District

[2019] NSWCA 98

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	MacQuarrie v Hunter New England Local Health District [2019] NSWCA 98
Hearing dates:	On the papers
Date of orders:	07 May 2019
Decision date:	07 May 2019
Before:	Basten JA, Ward JA, Payne JA
Decision:	No order made.
Catchwords:	CIVIL PROCEDURE – appeal – request for court to amend consent orders of own motion – application of slip rule – whether order remitting matter for rehearing unclear – meaning of “rehearing” in relation to trial – whether implied restraint on powers of court conducting retrial
Legislation Cited:	District Court Act 1973 (NSW), ss 126, 142N Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), rr 36.17, 51.53
Cases Cited:	Blackman v Commissioner of Taxation (Cth) (1993) 43 FCR 449; [1993] FCA 496 Goodwin v Commissioner of Police (No 2) [2011] NSWCA 90 Goodwin v Commissioner of Police [2010] NSWCA 239 Minister Administering the Heritage Act 1977 v Haddad [1991] NSWCA 200 Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374; [1998] FCA 334 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1
Category:	Procedural and other rulings
Parties:	Heidi MacQuarrie (Appellant) Hunter New England Local Health District (First Respondent) Keith Burton (Second Respondent) Jonathon Ell (Third Respondent)
Representation:	Counsel:     Solicitors: Bale Boshev Lawyers (Appellant) Hicksons (First Respondent) HWL Ebsworths (Second and Third Respondents)
File Number(s):	2017/269232
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 10 August 2017; 17 August 2017 Before: O’Brien ADCJ File Number(s): 2015/211983

Judgment

1. THE COURT: Ms Heidi MacQuarrie (“the plaintiff”) commenced proceedings in the District Court seeking damages for medical negligence against Hunter New England Local Health District. Following a trial in the District Court, orders were made in August 2017 dismissing her claim. She filed an appeal with this Court, which was heard in Newcastle in June 2018.

2. The matter was settled prior to completion of the hearing of the appeal and orders were made by consent setting aside the orders made in the District Court and remitting the matter to the Common Law Division (Supreme Court). Interlocutory steps have since been taken in preparation for a further trial. In particular, there is before the primary judge (Walton J) an application by the plaintiff to amend her pleadings and to administer interrogatories. The judge apparently raised an issue as to whether such steps were precluded by the form of the order of remittal made by this Court in June 2018.

3. The order of remittal was as follows:

“4.   Remit the matter to the Common Law Division of this Court for rehearing.”

4. With one qualification, this Court gave no directions as to how any further proceedings in the Common Law Division should proceed. The qualification is that the Court expressly ordered that the costs of the first trial be the plaintiff’s costs in the cause on the remitted proceedings. No issue arises in relation to that order.

5. On 4 April 2019 Walton J delivered an ex tempore judgment granting an adjournment to allow the plaintiff to approach this Court for clarification of the scope and operation of order (4) (the remittal order).

6. The reasons given on 4 April 2019 imply that there is uncertainty as to the scope of the remitter order, the resolution of which “is not entirely straightforward.” The reasons did not identify the point of uncertainty, but in an application to the Registrar of this Court, provided with the consent of the other parties, the plaintiff’s solicitors stated that “there is some doubt as to whether it is [to be] a new trial, or simply a rehearing of the matter on the pleadings and evidence that was before the District Court.” They sought to have this Court amend order (4) so as to provide a remittal “for a new trial” rather than “for a rehearing”. One respondent consents to such a step; the other two do not oppose it.

7. The plaintiff relies on the power of the Court to amend a clerical mistake or an accidental slip or omission in a judgment or order, as set out in r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) (“the slip rule”). There is no formal motion before the Court, but the plaintiff has pointed out that the Court may act on its own motion, and has invited it to do so. As the issue is readily resolved and the outcome is not in dispute, it is preferable that this Court resolve the alleged uncertainty without imposing the cost of further formalities on the parties.

8. It is appropriate, at the outset, to state a number of general propositions which will be explained further below.

1. The term “rehearing”, when used in reference to a trial and not an appeal, is not a term of art and has its ordinary meaning, that is, that there is to be a further hearing of the proceeding.

2. Where the jurisdiction of a court is engaged pursuant to an order of a superior court, that jurisdiction should not be understood as constrained by implied limitations which are not expressed in the order or in the underlying statutory basis of the jurisdiction.

3. The last proposition is in part a reflection of the further principle that, at least where there has been an appeal on both fact and law, an appellate court would be slow to impose constraints on the scope of a further trial where a further trial is required.

4. If there be uncertainty as to the intended scope of an order of a court, it is permissible to have regard to the reasons of the court in seeking to resolve any such uncertainty without the need for further applications or appeals.

9. Before providing some brief reasons for these propositions, it is appropriate to note the consequence of the last proposition in the circumstances of the present proceedings. As noted above, the proceedings were settled before completion of the hearing of the appeal. The parties handed up orders which were to be made by consent, but which required some amendments to be complete. By way of example, the proposed orders would have allowed the appeal and remitted the matter for a rehearing, but without expressly setting aside the orders made by the District Court. That and other minor issues were resolved in the course of a brief hearing on 21 June 2018. [1] The orders were entered on 25 June 2018.

   1.    Tcpt, 21/06/18, pp 109-112.

10. The remittal order, as proposed by the parties provided:

“2.   Remit the matter to the Common Law Division of this Court to be reheard de novo.”

The order as entered did not follow that language precisely, substituting the phrase “for rehearing” for the language proposed by the parties, “to be reheard de novo.” The concept of a rehearing was retained; the Latin tag was omitted. There was no discussion with respect to that variation which, it may be inferred, was not intended to have any effect, but merely to remove an otiose expression.

11. In circumstances where the court gave no reasons for the consent orders, it would have been appropriate for the trial judge to have been taken to, and had regard to, that material before declaring the orders of this Court to be uncertain as to their effect. The draft orders signed by the parties recorded the terms of their agreement, to which the orders gave effect.

12. There is a further factor which, had it been fully explained to the primary judge, should have resolved any question as to the scope of the further hearing. The appeal from the judgment in the District Court dealt with three topics, namely (i) the rejection of the plaintiff’s expert evidence, (ii) rejection of, and limitation of the use which could be made of, certain medical records and (iii) refusal of an application for leave to amend the statement of claim. The grounds of appeal provided the context for understanding the agreement of the parties that the appeal should be allowed, so that a further trial could take place. Given the bases of the appeal, it is inconceivable that that agreement could have entailed a trial on the same evidence as that adduced in the District Court and without the possibility of amendment of the statement of claim; it is equally improbable that, in making consent orders following almost two days of the hearing of the appeal, the Court would have intended that any further trial would be conducted on such a limited basis.

13. It is convenient to return to propositions (1) and (2) set out above, namely that the term “rehearing”, in relation to a trial, has no technical meaning; nor does it carry any implied constraint on the conduct of a further trial. In 1991 this Court heard a second appeal in relation to proceedings in the Land and Environment Court, which had been the subject of an earlier appeal and an order of remittal, which had resulted in a second hearing. The judgment in the second appeal, Minister Administering the Heritage Act 1977 v Haddad [2] Gleeson CJ, with whom Priestley and Clarke JJA agreed, explained the difficulty in the following terms, referring to the first appeal:

    2. [1991] NSWCA 200.

“The claimant’s submissions were accepted in this Court. The Court was of the view that his Honour had erred in law and allowed the appeal and made an order that the matter be returned to the Land and Environment Court for what was described as rehearing.

I have a strong impression that it is the expression ‘rehearing’ that has been the source of some degree of confusion in the subsequent history of the matter. The expression ‘rehearing’ is one that is sometimes used in connection with proceedings that are described as appeals. It is, for example, sometimes used in respect of certain proceedings in this Court. That is quite a different context from the context in which the expression was used in the order of this Court sending the matter back to Stein J. The proceedings in which the Land and Environment Court will be engaged pursuant to the order of this Court are in no way appellate proceedings.

…

[After referring to cases dealing with appeals by way of rehearing, the Chief Justice continued:]

All that concerns appeals by way of rehearing and has nothing whatever to do with the kind of rehearing before the Land and Environment Court contemplated by the order made by this Court in these proceedings in December 1988.

It seems that when the matter went before Stein J there were directions hearings at which the course of proceedings were discussed. Perhaps as a result of a suggestion made by his Honour or one of the parties the present claimant filed a notice of motion seeking a direction that:

‘He has the right to tender such admissible evidence as he considers appropriate not being raised in the matters before the Court of Appeal.’

Further specific directions were sought in relation to the admissibility of particular pieces of evidence. The present opponent filed a notice of motion seeking a direction that no further evidence was admissible on the view.

…

[Stein J] said towards the end of his judgment:

‘Whilst a general rehearing undoubtedly places all the issues at large it does not entitle a party to adduce further evidence as a right. …’

… In my respectful view that proposition is simply incorrect. As I have indicated earlier I suspect that his Honour’s opinion flows from some confusion between the kind of rehearing upon which he is engaged and what is sometimes described as an appeal by way of rehearing.”

14. Had the attention of the trial judge been drawn to this judgment, no doubt the matter would not be back before this Court.

15. That does not entail any conclusion that a trial judge, in dealing with a remitted matter, may not have powers to restrict the manner in which the case proceeds. That will depend upon the nature of the proceeding and the statutory powers of the court conducting the trial. Statements to this effect may be found in the judgments of the Full Court of the Federal Court in Blackman v Commissioner of Taxation (Cth) [3] and Morales v Minister for Immigration and Multicultural Affairs,[4] applied by this Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority. [5] After referring to Morales, the Court in Walker Corporation noted that where there is a power to order a “new trial” or a “retrial” nothing turns on the precise language used in respect of the scope of the power conferred on the court below.

    3. (1993) 43 FCR 449 at 455-456; [1993] FCA 496 (Gray J, Keely J agreeing).

    4. (1998) 82 FCR 374 at 388-389; [1998] FCA 334 (Black CJ, Burchett and Tamberlin JJ).

    5. [2009] NSWCA 178; (2009) 168 LGERA 1 at [35]-[36].

16. In Goodwin v Commissioner of Police [6] this Court, having allowed an appeal and set aside a judgment of the District Court, remitted the matter to the District “for reconsideration in accordance with decision of this Court.” However, the appellant sought to have that order varied (pursuant to the slip rule) to replace the word “consideration” with the word “determination”, that being the language of s 142N(2) of the District Court Act 1973 (NSW) conferring powers on the Court of Appeal in respect of appeals under that section. With respect to that application the Court stated in Goodwin v Commissioner of Police (No 2):[7]

“On its face, this contention involves an arid semantic point with no substantive consequence for the resolution of the litigation. It is true that the section provides that the Court may remit the matter for determination by the District Court, where the result of the appeal is that the matter has not yet been determined according to law. However, it does not follow that only an order in those terms will have the necessary effect. Once the decision of the Court below has been set aside, the proceedings before it remain uncompleted. There is no magic in the term ‘determination’, nor in the use of the term ‘remit’. The important step taken by this Court on the appeal was to set aside the decision of the Court below…. In any event, there being no valid determination in the Court below, the matter will need to be given further consideration by that Court, which will no doubt result, in due course, in a further determination, or other outcome …. The terms ‘reconsideration’ and ‘determination’ indicate no different effect: one refers to the process, the other to the outcome. Both, or either, could be used: see generally Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority. [8] ”

6. [2010] NSWCA 239.

7. [2011] NSWCA 90 at [3] (McColl JA, Basten JA and Sackville AJA).

8. [2009] NSWCA 178 at [26]-[40].

17. Propositions (3) and (4) above are also explained in Walker Corporation:[9]

“Directions limiting the scope of a remitter may themselves cause difficulties: see, eg, Waterways Authority v Fitzgibbon; [10] State of New South Wales v Burton (No 2). [11] Nor is it in doubt that where the terms of the order are unclear, it is appropriate to have regard to the judgment constituting the reasons for the order: see, Repatriation Commission v Nation; [12] Peacock v Repatriation Commission. [13] ”

9. Walker Corporation at [37].

10. [2005] HCA 57; 79 ALJR 1816 at [17]-[20] (Gleeson CJ, McHugh, Gummow and Hayne JJ agreeing).

11. [2008] NSWCA 319.

12. (1995) 57 FCR 25.

13. (2007) 161 FCR 256; [2007] FCAFC 156 at [19] (Downes, Lander and Buchanan JJ).

18. Returning to the present case, the appeal was brought under s 126 of the District Court Act. The powers of this Court are governed by s 75A of the Supreme Court Act 1970 (NSW), which says nothing about the form of the orders which may be made by the Court. While UCPR r 51.53 imposes a constraint on the court ordering “a new trial”, and allows for an order for a new trial with respect to part only of the matter in controversy, for the reasons already stated, the term “new trial” is also not a term of art, nor the only term having the same effect.

19. For these reasons, there is no basis for suggesting that the order of remittal made by this Court on the appeal heard in June 2018 in any way constrained the powers of the trial judge in dealing with interlocutory applications and the trial of the matter in the Common Law Division, except, as already noted, with respect to the costs of the earlier trial. Accordingly, it is not necessary to correct or vary the order made in the appeal and entered on 25 June 2018.

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Endnotes

Decision last updated: 07 May 2019