Nyoni v Patterson
[2012] WASCA 171 (S)
•28 NOVEMBER 2012
NYONI -v- PATTERSON [2012] WASCA 171 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 171 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:88/2011 | ON THE PAPERS | |
| Coram: | PULLIN JA BUSS JA MURPHY JA | 28/11/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Orders made on 28 August 2012 recalled Leave to appeal granted Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | EMSON NYONI MURRAY PATTERSON ROBERT BATEMAN |
Catchwords: | Appeals Practice and procedure Power to reopen decision of appellate court before orders perfected |
Legislation: | Nil |
Case References: | Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 Bastow v Bagley & Co Ltd [1961] 1 WLR 1494 Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 Mount Lawley Pty Ltd v Western Australian Planning Commission [No 2] [2008] WASCA 1 Nyoni v Patterson [2011] WASCA 215 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29 Wentworth v Woolahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NYONI -v- PATTERSON [2012] WASCA 171 (S) CORAM : PULLIN JA
- BUSS JA
MURPHY JA
- Appellant
AND
MURRAY PATTERSON
First Respondent
ROBERT BATEMAN
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File No : CIV 2610 of 2010
Catchwords:
Appeals - Practice and procedure - Power to reopen decision of appellate court before orders perfected
(Page 2)
Legislation:
Nil
Result:
Orders made on 28 August 2012 recalled
Leave to appeal granted
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant : No appearance
First Respondent : No appearance
Second Respondent : No appearance
Solicitors:
Appellant : In person
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Bastow v Bagley & Co Ltd [1961] 1 WLR 1494
Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Mount Lawley Pty Ltd v Western Australian Planning Commission [No 2] [2008] WASCA 1
Nyoni v Patterson [2011] WASCA 215
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29
Wentworth v Woolahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672
(Page 3)
1 REASONS OF THE COURT: Since the publication of reasons in this matter on 28 August 2012 (principal reasons) the court's attention has been drawn by the respondents to the fact that the master's orders made on 21 June 2011 to strike out the appellant's statement of claim filed 29 April 2011 had been the subject of an earlier appeal which had been dismissed, and thus it was unnecessary for this court to specifically deal with those orders in this appeal. The reasons in the earlier appeal are recorded in Nyoni v Patterson [2011] WASCA 215. The respondents sought, in effect, to have the court recall the orders pronounced (but not perfected) in that regard. The parties were given, and took, the opportunity to file and serve supplementary submissions on this matter. Having considered the supplementary submissions, it is appropriate to recall and vary the orders.
2 In summary, in that earlier appeal the court decided, in effect, that the statement of claim of 29 April 2011 was embarrassing, but that no substantial injustice would be done if the master's decision to strike out the statement of claim filed 29 April 2011 remained standing, because the appellant had been given leave to re-plead and he had taken that opportunity by filing a minute of proposed statement of claim on 19 July 2011 (19 July minute). The court in that appeal added that '[w]hether the master was correct in finding that the 19 July 2011 minute was also inadequate, and in dismissing the action, are issues that must await the outcome of the other appeal'. The reference to the 'other appeal' was a reference to this appeal. Accordingly, the only issue in the present appeal concerned the master's order to strike out the appellant's 19 July minute and, importantly, to dismiss the action. The master's decision to strike out the 19 July minute was, in effect, a decision not to allow the 19 July minute to stand as the statement of claim in the action, and the decision to dismiss involved, in effect, a decision not to allow the appellant to re-plead.
3 For the reasons given in the principal reasons, the 19 July minute discloses no arguable cause of action against the first respondent, and the action against the first respondent should be dismissed.
4 The 19 July minute, like the statement of claim filed 29 April 2011, is embarrassing, but it cannot be said that it discloses no arguable causes of action as against the second respondent. As with the statement of claim filed 29 April 2011, the 19 July minute contained what may be discerned as arguable claims against the second respondent in relation to trespass to land ('particulars' to par 4.1), conversion of the drug register ('particulars' to par 4.3), and detinue in relation to the drug register ('particulars' to
(Page 4)
- par 4.4). The court's observations in the principal reasons as to those causes of action plainly have equal application to the 19 July minute.
5 The master erred in striking out, without giving leave to re-plead, the 19 July minute in relation to those causes of action and in dismissing the action against the second respondent.
6 It follows that there should have been no orders made with respect to the orders made by the master on 21 June 2011. However, the master's orders of 26 July 2011 should be set aside.
7 The court has the authority to reopen a judgment it has pronounced and recall an order it has made prior to the passing or perfection of judgment: State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29, 38, 45; Wentworth v Woolahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672, 684; Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 [31]; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, 302 - 303; Mount Lawley Pty Ltd v Western Australian Planning Commission [No 2] [2008] WASCA 1 [5]. See also Monaco v Arnedo Pty Ltd (1994) 13 WAR 522, 524; Bastow v Bagley & Co Ltd [1961] 1 WLR 1494.
8 In Elliott v The Queen at [31] - [32] the court said:
It is well settled that a superior court of record such as the Supreme Court has a power to 're-open' a proceeding until judgment in the case in question has been drawn up, passed and entered (DJL v Central Authority (2000) 201 CLR 266 at 241 [34]). But by what criteria is that authority to be exercised?
It is here that guidance is provided by remarks of Mason CJ in Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300. His Honour gave examples from jurisdictions in this country (including the New South Wales Court of Appeal) and the United Kingdom where the power to re-open had been exercised on grounds not limited to denial of a fair hearing ((1993) 176 CLR 300 at 302), but went on ((1993) 176 CLR 300 at 303):
'What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.'
(Page 5)
- The circumstance in Autodesk that Mason CJ dissented as to the outcome of the re-opening application which was before this Court does not detract from his remarks.
9 This application does not involve any backdoor attempt by the respondents to re-argue their case. Rather, there has been a misapprehension as to the fact that the earlier appeal had dealt with the master's orders made on 21 June 2011. The error has given rise, in this respect, to an unintended inconsistency with the orders made in the earlier appeal. The previous orders have been entered and perfected. The orders in this appeal have not. The misapprehension cannot be attributed solely to the respondents. A reference had been made in the respondents' written submissions to the earlier appeal, but as the appeal was determined on the papers, the point was not elaborated upon or its significance developed.
10 The interests of justice would be served by recalling and varying the orders.
11 Costs of the primary proceedings should follow the event in relation to the first respondent. As the second respondent was partially successful before this court, in the circumstances, there should be no order as to costs with respect to the application before the master on 26 July 2012.
12 In the circumstances, the orders pronounced in accordance with [62] of the principal reasons should be recalled and varied so as to read:
(1) Leave to appeal is granted and the appeal is allowed in part.
(2) The orders made by the master on 26 July 2011 be set aside and in lieu thereof, the following orders (3) and (4) be made.
(3) As against the first defendant:
(a) the plaintiff be refused leave to file a substituted statement of claim in the form of the proposed statement of claim filed by the plaintiff on 19 July 2011 and the plaintiff's action be dismissed;
(b) the plaintiff pay the first defendant's costs of the action including reserved costs.
(4) As to the second defendant:
- (a) the plaintiff be refused leave to file a substituted statement of claim in the form of the proposed statement of claim filed 19 July 2011;
(b) the plaintiff have leave to amend his statement of claim in accordance with the court's reasons in this appeal;
(c) there be no order as to costs in respect of the application before the master on 26 July 2012.
13 Subject to hearing from the parties, the court's preliminary view is that the appellant should pay the first respondent's costs of the appeal and there should be no order as to costs as between the appellant and the second respondent.
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