O'Donnell v S Abbott; O'Donnell v D a Abbott

[2001] NSWCA 184

CITATION:	O'Donnell v S Abbott; O'Donnell v D A Abbott [2001] NSWCA 184
FILE NUMBER(S):	CA 40892/00; 40893/00
HEARING DATE(S):	15/06/01
JUDGMENT DATE:	21 June 2001
PARTIES :	Kerry Ann O'Donnell v Sylvia Abbott Kerry Ann O'Donnell v Deborah Anne Abbott
JUDGMENT OF:	Stein JA at 1; Ipp AJA at 2; Fitzgerald AJA at 27

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	20996/94; 20997/94
LOWER COURT JUDICIAL OFFICER :	Bell J

COUNSEL:	F S McAlary QC/W M Fitzsimmons (Appellants) F Santisi (Respondents)
SOLICITORS:	Abbott Tout (Appellants) G H Healey & Co (Respondents)
CATCHWORDS:	PRACTICE - Jurisdiction - Self-executing orders - Application for leave to appeal - Whether orders made by Master and entered by Deputy Registrar had effect - Powers of Registrar - orders of court - proceedings were dismissed by orders of Deputy Registrar and thus there was no jurisdiction for the orders to be later set aside or an extension of time granted. D
LEGISLATION CITED:	Supreme Court Act 1970 Supreme Court Rules 1970
CASES CITED:	FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268 Bailey v Marinoff (1975) 125 CLR 529 DJL v Central Authority (2000) 74 ALJR 706
DECISION:	(1) Applications for leave to appeal granted (2) Appeals upheld (3) Matters remitted to Bell J for determination according to law (4) Opponents to pay the claimant's costs of the appeal (5) The Opponents to have a certificate under the Suitors' Fund Act.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40892/00

CA 40893/00

SC 20996/94

SC 20997/94

STEIN JA

IPP AJA

FITZGERALD AJA

Thursday 21 June 2001

KERRY ANN O’DONNELL v SYLVIA ABBOTT

KERRY ANN O’DONNELL v DEBORAH ANNE ABBOTT

JUDGMENT

1    STEIN JA: I agree with Ipp AJA.

2    IPP AJA: These reasons relate to an application for leave to appeal and the appeal in each of the above matters. For present purposes the facts and circumstances relating to each matter are the same.

3    On 19 December 1994 the opponent in each case brought proceedings against the claimant for damages for personal injuries arising out of a motor vehicle collision that occurred on 16 January 1992.

4    On 28 February 1996 Master Greenwood made an order that the opponents supply the claimant with certain particulars. The learned Master ordered further that:

“If above orders are not complied with statement of claim is dismissed with costs by force of this order”.

5    The opponents failed to supply the requisite particulars by the stipulated date.

6    Towards the end of September 1996, the claimant, by notice of motion, sought orders that the opponents supply the particulars concerned within fourteen days and, in the alternative, that the opponents’ statements of claim be struck out.

7    On the return of the notice of motion, the matter came before the Prothonotary on 28 October 1996. The opponents were represented by Mr Reimer of counsel and the claimant was represented by Mr Fitzsimmons of counsel. The Prothonotary declined to make any order, noting on the court file “No jurisdiction to deal with the matter”.

8    We were informed from the bar table that the Prothonotary was of the opinion that he had no jurisdiction and could make no order as the self-executing order made by Master Greenwood on 28 October 1996 had previously taken effect, automatically, because the opponents had failed to supply the particulars on the date stipulated. If this was indeed the concluded opinion of the Prothonotary, it was incorrect. It is sufficient in this regard to refer to FAI General Insurance Company Limited vSouthern Cross Exploration NL (1988) 165 CLR 268 where Gaudron J said (at 289 to 290):

“Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which such an order has operated as ‘dead’, that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the court is functus officio. That being so, there seems to me no relevant distinction between a proceeding in which a conditional order for dismissal has been entered and a proceeding in which an order has been made but not entered, notwithstanding the decisions in Goodwin [v Southern Tablelands Finance Company Pty Limited (1968) 42 ALJR 309] and Bailey [v Marinoff (1971) 125 CLR 529].”

9    After the hearing on 28 October 1996 before the Prothonotary was concluded, the parties proceeded immediately to appear before Deputy Registrar Haggett. The opponents were again represented by Mr Reimer and the claimant by Mr Fitzsimmons.

10    It is not entirely clear what happened in the course of this hearing, but the parties informed the Deputy Registrar that they agreed that the opponents had not provided the particulars directed by Master Greenwood. The Deputy Registrar made the following note on the Court file:

“Direct that orders of Master Greenwood made 28/2/96 be entered”.

The Deputy Registrar settled and signed a minute, which is sealed and dated 28 October 1996. The document so signed and sealed thereupon constituted an order of the Court. It provided:

“1. In accordance with the orders of Master Greenwood made on 28 February 1996, and upon the court finding the plaintiff [opponent] has failed to comply with the said orders, the proceedings are dismissed.
2. The plaintiff [opponent] is to pay the defendant’s [claimant’s] costs of the proceedings”.

11    Thereafter, on the same day, the parties represented as aforesaid, came before Smart J. His Honour made the following entry in the Court file:

“I decline to entertain any application at this stage without prejudice to the rights of the plaintiff [opponent] to make such an application”.

Apparently, Smart J was of the view that as an order having final effect had been made by the Deputy Registrar, he had no jurisdiction to deal with the matter.

12    In December 1999, by notices of motion, the opponents applied for a series of orders including orders reviewing and setting aside the self-executing orders of Master Greenwood made on 28 February 1996, alternatively extending time for compliance therewith.

13    The opponents’ applications came before Bell J. Mr Fitzsimmons, who again appeared on the claimant’s behalf, submitted that, as the orders made by Deputy Registrar Haggett had been duly entered as final orders of the Court, her Honour did not have jurisdiction to entertain the orders sought in the notices of motion. He relied on the rule expressed as follows by Barwick CJ in Bailey v Marinoff (1975) 125 CLR 529 (at 530) (and approved by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in DJL v Central Authority (2000) 74 ALJR 706):

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at end in that court and is in substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed”.

14    Mr Santisi, who appeared for the opponents, submitted on the other hand that the rule expressed in Bailey did not apply to an order made by a registrar (a registrar being an officer of the court and not a judicial officer). He argued that Pt 2 r 3 of the Supreme Court Rules 1970 afforded Bell J jurisdiction to make the orders sought.

15    The parties agreed that her Honour should rule on the jurisdictional issue before hearing the evidence upon which the opponents proposed to rely in support of their motions.

16    Bell J upheld the submissions of the opponents and pointed out that the orders made on 28 October 1996 by Deputy Registrar Haggett were not orders of a judge or master. She said:

“The terms of the orders made on 28 October 1996 embody an assertion of the Court’s satisfaction that in each case the plaintiff [opponent] had failed to comply with the Master’s orders of 28 February 1996. That satisfaction is not that of the Master nor of a Judge. I do not consider that the principles referred to in DJL governing the finality of perfected orders made by a superior court of record after trial have application in the present case”.

17    Relying on FAI General Insurance Company Limited v SouthernCross Exploration NL, her Honour concluded that she had power to extend the time fixed by the Master’s order of 28 February 1996 and held:

“I have jurisdiction to entertain the Motions filed in each of the proceedings”.

18    The claimant applied for leave to appeal against Bell J’s decision and the parties agreed that the appeal, in each case, should be heard at the same time.

19 Mr McAlary QC who, together with Mr Fitzsimmons, appeared for the claimant, initially submitted that the Deputy Registrar was empowered to make the orders of 28 October 1996 by Pt 61 r 1 of the Supreme Court Rules, read with Schedule E thereto. He was, however, unable to refer to a specific power in Schedule E which conferred the requisite authority and conceded that the Deputy Registrar did not have power to make the orders. He then relied on s 121 of the Supreme Court Act 1970. This section, in my view, is conclusive of the appeal. In fairness to Bell J, I would note that no mention of it was made in argument before her.

20 Section 121 of the Supreme Court Act provides:

“121 (1) In this section ‘officer’ means a registrar, taxing officer, or other officer of the Court.
(2) An officer may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the officer.
(3) A judgment given or an order made by an officer may be set aside or varied by the Court.
(4) Subject to subsection (3), a judgment given or an order made or direction given by an officer shall have effect as a judgment or order or direction of the Court, whether or not the judgment, order or direction is within the powers mentioned in this section of the officer.
(5) An officer shall constitute the Court for the purpose of the exercise of the powers mentioned in subsection (2).

21 The effect of s 121 (and, in particular, s 121(4) read with s 121(3)) is that an order made by a registrar shall have effect as an order of the Court, whether or not the order is within the powers of the Registrar, until the order is set aside.

22    It follows, therefore, that the orders of 28 October 1996 made by Deputy Registrar Haggett remain of effect until set aside. Until then they are final orders and therefore attract the rule in Bailey v Marinoff and DJL. At the stage that the matters were before Bell J, the opponents had not applied to set them aside.

23 Accordingly, as the proceedings commenced by the opponents stood dismissed by the orders made on 28 October 1996 by Deputy Registrar Haggett, Bell J had no jurisdiction to set aside the orders of Master Greenwood of 28 February 1996 or to extend time to the opponents to provide the particulars required by that order. It would have been open to her Honour to set aside the Deputy Registrar’s order pursuant to s 121(3) and then to proceed to review the Master’s orders of 28 February 1996. But, as I have mentioned, the opponents did not make the necessary application to her Honour.

24    At the conclusion of argument on appeal, this Court granted leave to the opponents to amend the notices of motion before Bell J so as to seek (in addition to the orders already claimed thereby) orders extending time to apply to set aside the Deputy Registrar’s order of 26 October 1996 and setting aside that order. The opponents have given notice that that amendment has been made.

25 In the circumstances, I would grant the applications for leave to appeal, uphold the appeals, remit the matters to Bell J for determination according to law and order the opponents to pay the claimant’s costs of the appeal. The opponents to have a certificate under the Suitors’ Fund Act. No order as to costs was made by Bell J and I would make no order as to the costs of the proceedings before her Honour.

26    When the matter returns to Bell J, her Honour will be seized with the issue whether or not the orders made by the Deputy Registrar on 28 October 1996 should be set aside. It will be for her Honour to make whatever orders are necessary for the giving of any additional evidence in that connection. Should the opponents succeed in having the orders of 28 October 1996 set aside, it will be open to them to continue with their applications to set aside the orders made by the Master on 28 February 1996 or to seek orders extending the time for the provision of the particulars specified by the Master.

27    FITZGERALD AJA: I agree with Ipp AJA.

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