MK and JA Roche Pty Ltd v Metro Edgley Pty Ltd

[2004] NSWSC 780

CITATION:	MK and JA Roche Pty Limited & Ors v Metro Edgley Pty Limited & Anor [2004] NSWSC 780
HEARING DATE(S):	24/08/04
JUDGMENT DATE:	27 August 2004
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
DECISION:	See paragraphs 17, 18
CATCHWORDS:	Application to recall reasons for Judgment - Principles
CASES CITED:	Autodesk v Dyason (No 2) (1993) 176 CLR 300 Bromley v Bromley (No 2) [1965] P 111 De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290 Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28 Harrison's Share Under a Settlement, Re; Harrison v Harrison [1955] Ch 260 Mulvena v Government Insurance Office of New South Wales (Mahoney, Clarke and Sheller JJA, Court of Appeal of New South Wales, 16 June 1992, unreported) BC9201810 Nakhla v McCarthy [1978] 1 NZLR 291 Nova Scotia v Province of Nova Scotia (1977) 23 NSR 357 Sherpa v Anderson (Young J, Supreme Court of New South Wales, 14 October 1993, unreported) Smith v Australia and New Zealand Banking Group Ltd (Priestley, Sheller and Powell JJA, NSW Court of Appeal, 21 November 1996, unreported) Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 Twenty-First Australia Inc. v Shade & Anor (1998) NSWSC 325 Wentworth v Rogers [2002] NSWSC 921 Wentworth v Wentworth [1999] NSWSC 638 Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672
PARTIES :	MK & JA Roche Pty Limited (ABN 25 076 529 952) (First Plaintiff) Michael Kevin Roche, Christopher John Roche, William Timothy Roche, Kevin Michael Roche, Gabrielle Mary Roche (Second Plaintiff) Metro Edgley Pty Limited (ABN 37 082 440 042) (First Defendant) Multiplex Limited (formerly Multiplex Constructions Pty Limited (ACN 008 687 063) (Second Defendant)
FILE NUMBER(S):	SC 50069/04
COUNSEL:	Mr DJ Hammerschlag SC, Mr VF Kerr (Plaintiffs) Mr CR Newlinds SC, Ms RS Francois (Defendants)
SOLICITORS:	Lane & Lane (Plaintiffs) Clayton Utz (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Friday 27 August 2004

50069/04 MK and JA Roche Pty Limited & Ors v Metro Edgley Pty Limited & Anor

JUDGMENT on application to recall reasons

1 A reserved judgment was delivered in these proceedings on 18 August 2004.

2 The plaintiffs have submitted that the reasons should be recalled and that the Court should give different reasons.

The principles

3 The Court has an inherent power to reopen a hearing, inter alia, for the purpose of reviewing and varying reasons for judgment before any judgment or order has been entered [Wentworth v Wentworth [1999] NSWSC 638 paragraph 6, per Santow J]. However care must be taken in distinguishing between the precise approaches appropriate, bearing in mind whether or not the application concerns a suggested reopening of a decision at first instance or of a decision at an intermediate or final appellate level.

4 The circumstances in which an issue might be reviewed as described by Mason CJ in Autodesk v Dyason (No 2) (1993) 176 CLR 300 were as follows:

"Where a court has good reason to consider that it had proceeded on a misapprehension as to the facts or the law and where the misapprehension cannot be attributed solely to the applicant's neglect or default."

5 The matter was put as follows by Barrett J in Wentworth v Rogers [2002] NSWSC 921:

“7. On the application for re-opening of the hearing, senior counsel for the second plaintiff referred to a number of the High Court decisions on re-opening after judgment but before entry of orders. The first plaintiff, who again appeared in person, made reference to a great number of authorities. While cases on this subject as it affects appellate courts are no doubt instructive, the fact remains that treatment of the issue at that level is affected by considerations which do not apply when it is sought to have proceedings determined by a single judge at first instance re-opened after judgment. In R v Nitin Giri (No 2) [2001] NSWCCA 234, Heydon JA distilled from High Court authority ( Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672, State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29, Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300) the three issues central to the re-opening jurisdiction which the High Court regarded as exercisable by appellate courts in only “extremely rare” or “quite exceptional” circumstances and then only with “great caution”:

• first, whether the appellant has shown that, without accident or fault on the appellant’s part, he or she has not been heard on a relevant matter;
• second, whether the appellant has shown an error in the court’s reasoning because of a misapprehension of the facts; and
• third, whether the appellant has shown an error in the court’s reasoning because of some misapprehension of the relevant law.

[See also, in particular, Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 and De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207.)”

6 Justice Barrett then proceeded to cite portions of a judgment delivered by Justice Santow (Wentworth v Wentworth [1999] NSWSC 638) in the course of which excerpts Justice Santow had given the following examples of where review had been allowed in the case of a judgment or order of a court of first instance.

“(i) Where the court’s reasons for judgment inadvertently did not deal with important matters argued by counsel at the hearing where an appeal to correct this would involve inevitable delay; Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported) in Butterworths Unreported Judgments at 18.

(ii) Where the court’s reasons involve ‘infelicity of expression and ambiguous statements’ which may be corrected by the trial judge upon the bringing in of short minutes; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290.”

7 Justice Barrett went on to cite the following paragraph from Justice Santow:

“While illustrations of where the courts have or have not re-opened a judgment not yet entered are of value, they can be subsumed more generally in what Mason CJ said in Autodesk (at 301-302). He delimited the scope of the discretion by explaining that “the exceptional step” of reviewing an issue might occur where a court has good reason to consider that it had proceeded on a misapprehension as to the facts or the law and where the misapprehension cannot be attributed solely to the applicant’s neglect or default.”

8 Justice Barrett then concluded as follows:

“It seems to me that the relevant principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision.”

9 In Twenty-FirstAustralia Inc. v Shade & Anor (1998) NSWSC 325, Young J, [now Young CJ in Eq], also had occasion to refer to the significance of the Autodesk decision being one of the High Court. His Honour in the appendix to the judgment said as follows:

“Mr Russell, for the defendant, says that I should not permit Mr Robinson to raise these matters. He says, and his submission is based on the decision of the High Court in Autodesk Inc v Dyson [No 2] (1993) 176 CLR 300, that leave to reopen a matter after reasons for judgment have been handed down, even though there has been no formal entry of the judgment, is something to be given only in exceptional circumstances.

The first thing to note is the decision relied on is a decision of the High Court. The High Court has for many years adopted the policy that not even submissions made in writing the day after the court’s oral hearing will be take into account, and that counsel either says what needs to be said on the day or not at all.

The practice in the Equity Division of this court has not been so severe. Indeed, it quite frequently happens in this Court that counsel uninvited put in further written submissions before the judge delivers judgment. Leave, as far as I know, has never been sought on these occasions, though if counsel does not communicate with the Judge’s Associate, counsel runs the risk judgment will be delivered before the written submissions are seen. Indeed, this is a tactic often used by counsel to remind the judge that he has been sitting on the judgment too long.

Further, the procedure in the Equity Division has been that because counsel are in court to assist the judge, rather than with the prime purpose of winning the case, a freer attitude is taken to reopening decisions than may be the case elsewhere.

Accordingly, although the Autodesk case does set out some general principles, it is important that one apply those principles in the facts and circumstances of the procedure of each particular court.”

10 A convenient summary of the principles is to be found in Fletcher Construction Australia LtdvLines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28 at 47 [49]:

“The extent to which judges of a superior court may properly alter reasons for judgment subsequent to their being given may depend not only on whether the changes are sought to be made before or after judgment has been entered, but also on the nature and extent of the alterations. A litigant is entitled to a decision that is based on reasons that have led the judge to that conclusion. It would obviously impede the proper administration of justice and work unfairness to the parties if the judge could, at a later time, give different reasons for the decision which were crafted after judgment had been pronounced. Thus, the courts limit the rights of a judge to change the reasons, but they do so consistently with the practical requirements of justice. In the case of a superior court of record, judgment is not relevantly finalised until it is entered in the records of the court. Hence, until that occurs, the judge can recall the order and the reasons and make a different order and give different reasons: Smith v Australia and New Zealand Banking Group Lt, unreported, NSW Court of Appeal, 21 November 1996, per Priestley, Sheller and Powell JJA; Sherpa v Anderson, Unreported, NSW Supreme Court, 14 October 1993, per Young J; Mulvena at 11 per Mahoney JA; Re Harrison’s Share Under a Settlement, [1955] Ch 260 at 284. But once judgment is perfected the judge cannot, in substance, rewrite the given reasons so as to give different reasons for the decision or, in the words of Willmer LJ in Bromley v Bromley, [1965] P 111 at 114, “put a different complexion on the issue in dispute”. In Nakhla v McCarthy, [1978] 1 NZLR 291, Woodhouse J, at 296 for the Court of Appeal, said that in general a judge cannot alter the reasons so as to modify or change the effect of the judgment once it has been perfected. Similarly, in Nova Scotia v Province of Nova Scotia, (1977) 23 NSR 357 at 357–8, the Nova Scotia Court of Appeal held that once judgment is entered, the substance of the reasons cannot be changed; if correction is needed it can only be made by a higher court.”

Dealing with the issue

11 The plaintiffs have submitted that the last sentence of the judgment in paragraph 49 is incorrect.

12 Having carefully read the sentence and re-read Suttor at page 442 the following seems to me to be a correct statement of the position:

· the use [in paragraph 49] of the word "subsequent" threw up an ambiguity. My intent was to refer to the second of the two letters written by the defendant's solicitors in Suttor [the first of those being the letter of 6 January 1948, said by the High Court not to have contained a clear statement that the contract was considered by the defendant as cancelled];

· the word "not" should have appeared towards the end of the sentence following the comma and after the word "would". This represents a typographic error;

· the words "it was too late" were not to the point and are capable of incorrectly suggesting that a letter in precisely those terms written prior to the Treasurer's consent in writing to the transfer being obtained, would have effected a cancellation.

13 It does seem to me that within the principles already cited, the court’s reasons [in relation to this particular last sentence of paragraph 49] involve ‘infelicity of expression and/or ambiguous statements’ which may and now should be corrected by the trial judge. Importantly as I see it there is and was no error of principle but only of expression. No different reasons for the decision are to be given.

14 The final sentence of paragraph 49 was in any event superfluous. The paragraph made plain that in like fashion to the second of the letters [that of 15 January 1948] written in Suttor, the proper construction of the 21 May 2004 letter from Roche to Metro-Edgley, is to regard the letter as having been written on the view that the particular clause had effected an automatic cancellation of the contract. The simple point clearly made in the whole paragraph is that such a letter by itself was insufficient to constitute notice of cancellation of the contract and did not effect an avoidance of the Development Contract.

15 To my mind the authorities in the circumstances permit the Court to clarify its reasons in the above-described fashion. In terms of procedure it appropriate to substitute in the place of the last sentence of paragraph 49 the following sentences:

"The second of the defendant's solicitors letters purporting to cancel the contract was only written after the consent in writing of the Treasurer to the transfer had been obtained. Even had it been written earlier, it would not have effected the cancellation."

16 Such a substitution in no way alters or varies the court's expressed reasons for the finding.

17 Accordingly the revised form of the judgment will substitute the above sentence in place of the last sentence of paragraph 49.

18 There is no substance in the plaintiffs submissions that paragraph 50 is in error, nor that the suit should now succeed.

I certify that paragraphs 1 - 18
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 27 August 2004

___________________
Susan Piggott
Associate

27 August 2004

Last Modified: 09/02/2004