O'Rafferty v The Queen [No. 2]
[2014] ACTCA 52
•19 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | O’Rafferty v The Queen [No. 2] |
Citation: | [2014] ACTCA 52 |
Hearing Date: | 5 November 2014 |
DecisionDate: | 19 December 2014 |
Before: | Murrell CJ, Penfold and Ross JJ |
Decision: | The application is refused. |
Category: | Interlocutory application |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – application for court to re-open appeal to deal with unaddressed appeal ground – orders made on appeal perfected – scope for appeal court to re-open unfinished appeal – scope of slip rule – whether criminal appeal can be re-opened by consent – jurisdiction of Court of Appeal – re-opening of criminal appeals by consent excluded by Court Procedures Rules. |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 1613(2), 5001(1), 5001 (2), 5001(3) Criminal Appeal Rules (NSW), rr 50C(2) and (3) Federal Court Rules, O 35 r 7 Federal Court Rules2011 (Cth), r 39.05 Supreme Court Act 1933 (ACT), s 37O |
Cases Cited: | Achurch v The Queen [2014] HCA 10 Ainsworth v. Wilding [1896] 1 Ch. 673 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 Wickey v R (No 2) [2012] ACTCA 51 |
Parties: | Kevin O’Rafferty (Appellant) The Queen (Respondent) |
Representation: | Counsel Ms A Francis (Appellant) Ms M Jones (Respondent) |
| Solicitors Aboriginal Legal Services (NSW/ACT) Ltd (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 39 of 2013 |
THE COURT:
Introduction
On 21 August 2014 this Court gave a decision in an appeal by Kevin O’Rafferty against a conviction for sexual intercourse without consent (O’Rafferty v The Queen [2014] ACTCA 35). The court quashed the appellant’s conviction and ordered a new trial.
The Court’s judgment dealt with an appeal ground relating to the failure of the trial judge to put the appellant’s case properly to the jury. The Court concluded that this failure had caused a miscarriage of justice and a new trial was required. The necessary orders were made on 21 August 2014, and were recorded in a “General form of order” on the same day. It seems clear that the court’s judgment has been “perfected” (as described, for instance, in Burrell v the Queen (2008) 238 CLR 218 (Burrell) at [17] and [18]).
The Court did not, however, deal in its judgment with one of the other appeal grounds (identified in the original notice of appeal as ground (d)) which, if successful, would have led it to quash the conviction and enter a verdict of not guilty.
Application to re-open appeal
The appellant has applied to the Court to re-open the appeal to deal with that appeal ground.
The appellant relies on the following arguments in support of his application:
(a)That because the relevant ground was not dealt with by the Court, the Court has not exhausted its jurisdiction in relation to the appeal (Supreme Court Act 1933 (ACT), s 37O) and there is no bar to the matter being “re-opened”; in particular, the principle of finality is not relevant, since there is no attempt to re-open issues that have already been decided.
(b)That an appellate court is required to hear and determine all grounds of appeal (Jones v The Queen (1989) 166 CLR 409 (Jones) at 411).
(c)That an appellate court has an inherent power to rely on the “slip rule” (Burrell; see also Achurch v The Queen [2014] HCA 10 (Achurch) at [18]), and that that power could be exercised to enable this Court to deal with an inadvertent omission to consider an appeal ground (relying on L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; Wickey v R (No 2) [2012] ACTCA 51; Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 at 524).
The respondent Crown concedes:
(a)that the Court of Appeal did not determine whether the verdict was unsafe or unsatisfactory;
(b)that the remedy if a verdict is found to be unsafe or unsatisfactory is different from the remedy provided by the Court of Appeal;
(c)that finding the verdict to be unsafe or unsatisfactory may lead to an acquittal rather than a retrial;
(d)that there is merit in the appellant seeking to rectify the failure of the Court of Appeal.
However, the Crown also says:
(a)it does not concede that the undetermined ground of appeal has any merit; and
(b)there is no automatic right for the Court of Appeal to re-open the appeal.
Submissions
After considering the initial written and oral submissions made on the application, the Court indicated to the parties that it was considering the scope for re-opening the appeal by consent, and the respondent sought leave to make further submissions. Those submissions were to the effect that the appeal could not be re-opened by consent, but that if the Court determined that it did have that power, the respondent would consent to the re-opening.
After consideration of the respondent’s submissions, the Court invited the applicant to respond, and the applicant’s solicitors sought leave to file submissions about the operation of the Court Procedures Rules 2006 (ACT), indicating that two working days would be enough for that purpose. No submissions were filed within that time. The court made inquiries of the appellant’s solicitors, who indicated that they were unable to file submissions as proposed, and apologised for any inconvenience. There was no application for an extension of time.
The slip rule
It is convenient to deal with the “slip rule” argument first.
In Achurch at [18], French CJ, Crennan, Kiefel and Bell JJ said:
18. The slip rule as an aspect of the inherent or implied powers allows for limited correction of an order after its final entry, as was explained in Burrell:
"The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded." (footnote omitted)
The power conferred under the slip rule "is one to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation."
The orders of the court in this case were that the appeal was allowed, the verdict and conviction were set aside, and a new trial was ordered. The significance of this application is, as already noted, that if the appeal ground concerned were determined in the appellant’s favour, the court’s order would include the entry of a verdict of acquittal instead of the order for a new trial. If the appeal ground concerned were determined against the appellant, the court’s order would be as originally made.
That is, on the one hand the current order correctly records what the court pronounced and intended to pronounce; on the other hand, the suggested change to the court’s order would replace it with an order that, at the time of the making of the original order, was not what the court either pronounced or intended to pronounce. The fact that, in such a circumstance, it might be said that the court had mistakenly overlooked the grounds for, and the appropriateness of, making the different order does not in our view mean that the new order would reflect the court’s real intentions at the time the original order was made.
We are satisfied that the slip rule is not available to “correct” the orders of the court by providing further reasons for that order, let alone by providing new reasons and a different order.
Is the appeal unfinished?
The appellant says that a Court of Appeal is required to determine all appeal grounds, and that since the Court of Appeal in this case has not determined all appeal grounds, the appeal remains unfinished and the court still has jurisdiction to finish it. On this basis, the appellant argues that the principle of finality has no application, because the appeal has not been finalised.
In Burrell, the High Court dealt with a case in which the New South Wales Court of Criminal Appeal re-opened its decision on an appeal having discovered that the judgment relied partly on incorrect factual material in a document created by the Crown but provided by the appellant in his appeal papers. The Court provided further reasons, reconsidering the conclusions that it had reached by reference to the inaccurate factual material, and ordered that the orders dismissing the appeal should be confirmed. Gummow ACJ, Hayne, Heydon, Crennan and Keifel JJ, after pointing out the importance of considering the availability of a power to re-open in the context of the particular governing statutes applicable to the court concerned, said:
15. Secondly, it is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be re-opened except in a few, narrowly defined, circumstances." That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon re-opening of final orders after they have been formally recorded.
16. The third consideration of principle which it is necessary to state at the outset is related to the second. It is that the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly. (citations omitted)
The plurality then considered the importance of whether the orders concerned had been “perfected”, explaining:
19. The end of a court's powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court's orders were the criterion, there would never be an end to some disputes. And because one party's assertion of error cannot provide a sufficient criterion, a court's belief that it has recognised its own mistake can provide no useful criterion. Such a belief could provide no useful criterion because, in the end, the accuracy of the belief would have to be tested against the arguments of the parties. It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality.
20. Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
The plurality at [24] noted previous decisions to the effect that the Court of Criminal Appeal “had no jurisdiction to re-open an appeal which it had heard upon the merits and finally determined” (referring to Grierson v The King (1938) 60 CLR 431 (Grierson); Elliott v The Queen (2007) 234 CLR 38 at 42 [7]), and then considered a submission to the effect that the speedy perfecting of the orders in Burrell (apparently on the day the decision was handed down) gave the parties no opportunity to check the order and therefore involved a denial of procedural fairness such as to allow the Court of Criminal Appeal to re-open the order and correct the factual errors that had been recognised.
Their Honours concluded:
28. The parties to an appeal are given procedural fairness by allowing each a proper opportunity to make submissions before the court makes its decision. Once the court announces the decision it has made, any further hearing is exceptional. To hold that parties must be given a sufficient opportunity to consider whether to ask for a further hearing would convert the exception into the rule. That step should not be taken.
29. For these reasons, the appeal to this Court should be allowed. The Court of Criminal Appeal did not have power to re-open the appeals after its first orders had been formally recorded. The second orders of the Court of Criminal Appeal were made without power and for that reason should be set aside. There being no dispute that the first orders were pronounced on an infirm factual foundation, those orders must also be set aside. It would not be appropriate for this Court to undertake the fresh consideration of the appeals to the Court of Criminal Appeal that must now be undertaken. The better course is to remit the appellant's appeal against conviction, and his application for leave to appeal against sentence, to the Court of Criminal Appeal for rehearing.
Kirby J, while agreeing with the ultimate result, commented on the speed with which the orders of the Court of Criminal Appeal had been entered:
126. Statutory reform and administrative practice: The rule in Grierson is, of course, liable to be reversed or qualified by laws made by or under statute. The adoption of new provisions in the Criminal Appeal Rules, following the second decision of the Court of Criminal Appeal in these proceedings was designed to permit that Court to set aside or vary an order within 14 days after the order was entered. This amendment to the Rules (assuming it to be valid) arguably amounts to an express recognition by the rule-maker that, absent such a rule, the Court of Criminal Appeal lacked the power that was then provided by the amendment.
127. In any event, the basic source of the problem that arose in the present case was the over-rapid formalisation of the pronounced order dismissing Mr Burrell's appeal, by the conduct of the registry officer, on that very day, of issuing the Notification and entering the order in the way contemplated by the Criminal Appeal Rules. It was not essential, necessary or even desirable that that should be done so rapidly. Especially given the publication of extended reasons comprising nearly 130 pages and the desirable facility to parties to have an opportunity to read, consider and draw any mistakes or misunderstandings to attention, there were many reasons why such an administrative practice was unsuitable.
128. In a sense, it was this practice (inferentially alterable by specific or general directions of the judges) that brought about the entering of the Court's orders. Had that course not been followed, or had the Court of Criminal Appeal itself directed a delay in the formalisation of its orders when publicly pronouncing them, many (if not all) of the problems presented by this appeal could have been avoided.
129. Conclusion: jurisdiction unavailable: In the result, the better view of the governing law is that there is no further exception to the principle in Grierson, applicable where a matter has been decided on the merits by the Court of Criminal Appeal where that decision has passed into judgment by being entered in court records in the manner contemplated by the Criminal Appeal Rules.
130. It follows that the Court of Criminal Appeal erred in rejecting the submission for Mr Burrell, when the appeal was relisted, that it had no jurisdiction or power to recall its earlier decision or to reconsider or alter the orders previously pronounced and entered. That submission should have been accepted. The Court of Criminal Appeal should then have left any correction of the orders to this Court.
This is an issue which may justify further consideration within this Court.
In Jones, a case very similar to this one, Mason CJ, Brennan, Dawson and Toohey JJ said at 411:
On appeal to the Court of Criminal Appeal in Tasmania a number of grounds were argued. The Court of Criminal Appeal allowed the appeal, quashed the convictions and ordered a retrial. The applicant seeks special leave to appeal from that part of the judgment of the Court of Criminal Appeal which orders that the applicant be retried. This Court invited the parties to address themselves first to ground 14 of the applicant's proposed notice of appeal which raises a supposed failure on the part of the Court of Criminal Appeal to hear and determine grounds of appeal which were argued before it and which, if accepted, would have entitled the applicant to a verdict of acquittal to be entered pursuant to s.402(3) of the Criminal Code (Tas.).
3. A court of criminal appeal has jurisdiction to hear and determine all grounds of appeal which are raised and argued in support of an appeal by a convicted person who seeks an order quashing his conviction and entering a verdict of acquittal. As it is the duty of a court of criminal appeal to exercise its jurisdiction when that jurisdiction is invoked, the court must hear and determine each ground of appeal which is raised and argued unless the ground is plainly untenable or the party raising it succeeds on another ground. That is not to say that the reasons for judgment of a court of criminal appeal must deal extensively with every ground that is raised and argued. The cogency of the argument and the state of current authority affect the content of the reasons which should be assigned by the court for the order it makes. But the court cannot fail to hear and determine tenable grounds raised and argued in support of a verdict of acquittal merely because the court accepts other grounds of appeal which result in quashing the conviction and an order for retrial. A court of criminal appeal which confines its judgment in that way fails to exercise fully its jurisdiction and the appeal remains partially undetermined. The order for retrial cannot be supported, for that order is not appropriate if the appellant is entitled to a verdict of acquittal.
However, in Jones, the plurality went on to say:
11. The order of the Court of Criminal Appeal has been perfected. Counsel for both parties in this Court approached the application for special leave on the footing that it is now too late for the applicant to move the Court of Criminal Appeal to hear and determine the grounds left undetermined. If that be right - and in this case we should assume but not decide that it is - it is regrettable that when the omissions from the reasons for judgment in the Court of Criminal Appeal became known and before the formal order of the Court was perfected such an application was not made to the Court. Now, in order to ensure that the applicant's appeal to the Court of Criminal Appeal is fully determined, it is necessary to vary that Court's judgment and to remit the matter for further hearing and determination.
12. The appropriate course for this Court to follow is therefore to grant special leave to appeal, to allow the appeal against that part of the judgment of the Court of Criminal Appeal which orders that the applicant be retried and remit the matter to the Court of Criminal Appeal in Tasmania to complete the hearing and determination of the appeal to that Court. The order for bail made by the Court of Criminal Appeal should be varied to require the applicant to appear for retrial at a date to be fixed by the Criminal Court at Hobart unless the Court of Criminal Appeal shall order that verdicts of acquittal be entered.
In R v Lapa (No 2) (1995) 80 A Crim R 398 (Lapa), an application to re-open an appeal against conviction on the ground that the NSW Court of Criminal Appeal had failed to address one of the grounds of appeal was granted, because the order dismissing the appeal had not been perfected before the application was filed. In that case, the court (Clarke JA, with whom Handley JA and Sully J agreed) said at 402:
It is well established at common law that a court may review, correct or alter its judgment at any time until its order or judgment has been perfected: Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 265; Re Suffield & Watts; Ex parte Brown [1888] 20 QBD 693 at 697; Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382 at 457; Pittalis v Sherefettin [1986] QB 868 at 879; Re Harrison's Share [1955] Ch 260.
The position is different once the judgment or order has been perfected. Subject to the rules of court and possible exceptions concerning subsidiary matters, a court has no power to reconsider its decision and the judgment can be reviewed only on appeal: Bailey v Marinoff (1971) 125 CLR 529. Since Bailey there have been a number of decisions in the High Court bearing on the question of the court's power to review its own decision and the circumstances in which it may alter an order made but none of those cases has overruled Bailey or the common law rule that once the judgment has been perfected a court has no power, subject to any relevant rules, to alter its judgment in a substantial respect.
By reference to Jones and Lapa, it seems that in a case such as this one involving an unfinished appeal, it is the perfecting of the order that would stand in the way of re-opening the appeal so that the court can, as described in Jones (quoted at [21] above) fully exercise its jurisdiction and determine the partially undetermined appeal.
Scope for re-opening after orders perfected
Accordingly, we have considered the scope more generally for re-opening a matter after orders have been perfected.
Civil proceedings
In Permanent Trustee Co v Stocks & Holding (1976) 28 FLR 195 (Permanent Trustee Co) Brennan J sitting in the ACT Supreme Court considered an application by consent to set aside a perfected consent order as to terms of settlement. His Honour said at 199:
Accepting that there is a perfected judgment not liable to be set aside and expressing correctly the intention both of the parties and of the court, the judgment debtor with the consent of the judgment creditor seeks the setting aside of the judgment merely by the agreement of the parties. Is there jurisdiction to set aside by consent a judgment regular in every respect? And if the court has that jurisdiction, are there any circumstances which ought to condition its exercise?
After considering a number of older authorities (Hammond v Schofield, [1891] 1 Q.B. 453; The Bellcairn, [1885] P. 161; Ainsworth v. Wilding [1896] 1 Ch. 673), his Honour concluded at 201 that:
The better view appears to be that the court has jurisdiction to set aside a regular judgment if the parties to the judgment consent to the court doing so. But it further appears that the court should decline to make the order if a third party would suffer particular injury by the making of the order.
In DJL v Central Authority (2000) 201 CLR 226 (DJL) a majority of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) discussed the power of a superior court, specifically the Full Court of the Family Court, to re-open or set aside its decision after the entry of judgment, and at [34], citing Permanent Trustee Co, said:
It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties. (citations omitted)
In VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 (VTAG) the Full Court of the Federal Court (Heerey, Finkelstein and Lander JJ) considered an application to set aside a perfected consent order that dismissed an appeal from a single judge of the Federal Court. The appeal concerned a Refugee Review Tribunal decision to refuse to grant the applicant a visa. The Minister argued that the Court lacked jurisdiction to set aside the perfected order, but consented to the setting aside in the event the Court established jurisdiction. After referring to the decision of Brennan J in Permanent TrusteeCo, the Court said at [30] and [31]:
The question in this case is whether the Federal Court can exercise the jurisdiction which Brennan J did in Permanent Trustee. The Federal Court, as a statutory court, does not have any inherent jurisdiction: DJL at [25]. ... The extent of the Court’s “incidental and necessary” powers are shaped by s 5(2) of the Federal Court Act. Section 5(2) provides that the Federal Court is “a superior court of record and is a court of law and equity”. In consequence, the Court’s “incidental and necessary powers” are “no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction”: Jackson v Sterling Industries Ltd (1987) 162 CLR 612, 619 per Wilson and Dawson JJ. It follows that the Federal Court can by consent set aside final orders which have been made by consent. In very limited circumstances, the Court can also set aside final orders made otherwise than by consent.
...
In the absence of anything to put the Court on notice as to any improper purpose, or any rights of third parties which might be affected, it would usually be sufficient for the Court to act on the expressed consent of the parties.
The question whether orders not made by consent could be set aside by consent of the parties has been considered in several other recent cases.
In Lashansky v Legal Practitioners Complaints Committee[2005] WASCA 217 (Lashansky) the Court of Appeal in Western Australia (Wheeler, McLure JJA and Miller AJA) considered an application to vacate orders made by the Full Court and reinstate the applicant’s appeal.
The Court considered an argument that the respondent had consented to reinstatement of the appeal, ultimately finding that this was not the case. At [129] and [144]–[152], however, the Court considered the state of the law in relation to vacating orders by consent, and discussed each of the cases referred to above, including those considered by Brennan J in Permanent Trustee Co. The Court expressed some concerns about the notion that perfected orders could be set aside by consent, but accepted at [152] that:
the "better view" is that a consent of all parties will confer upon the Court a power to recall a perfected order.
In Hardie v Milling [2013] NSWSC 310 at [11] Lindsay J said:
I proceed on the basis that, an order having been made by the court, it cannot be set aside merely at the will of a party, but the court has power to set aside any judgment or order if the parties to the proceedings consent. An express power to that effect can be found in the Uniform Civil Procedure Rules 2005 NSW, r 36.15(2). Independently of that rule, the court has jurisdiction to set aside a regular judgment if the parties to it consent to its doing so, provided, at least, that the making of an order setting aside the judgment would not cause a third party to suffer particular injury: Permanent Trustee Co (Canberra) Ltd (Executor, Estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 at 50.
Although the courts in VTAG, Lashansky and Hardie v Milling did not confine their conclusions about the scope for setting aside orders by consent to orders originally made by consent, the court in VTAG noted at [26] that there may be special considerations that support a wider scope for setting aside consent orders than other orders, saying:
There are characteristics of consent orders which strongly suggest that Parliament would not have intended that such an order, once made and entered, could never be set aside or varied. With a consent order, leaving aside the exceptional case of approval of compromises involving litigants under a disability, the Court does not inquire into the merits of the order proposed. It does not decide questions of fact or law. With a consent order there is not the possibility of error of fact or law which could found an appeal either from a single judge to the Full Court or from the Full Court to the High Court.
See also Lashansky at [150].
In Lashansky, the Court suggested that the availability of a power to set aside an order by consent did not necessarily mean that such a step should be taken, saying at [152]:
Whether the Court should then recall the order is another question, and, having regard to the public interest in finality of litigation, we consider it would be necessary, even where all parties consented, for the Court to consider whether in the circumstances the interests of justice required the setting aside of the order. That is consistent with the approach taken in the cases which we have discussed, in which there seems always to have been some explanation offered to, or sought by, the Court as to the reason of the party or parties seeking to set aside the orders.
We note specifically the respondent’s submission that all the cases constituting this line of “authority” rely on Brennan J’s ruling in Perpetual Trustee Co, and a number of the courts involved have been tentative about accepting any extension to his Honour’s conclusion, but note that this does not of itself make Brennan J’s view any less persuasive than if it had not been the subject of tentative judicial acceptance.
We accept the respondent’s general submission that none of these cases is, strictly speaking, authority for the proposition that, absent specific statutory authority, a perfected order made otherwise than by consent may be set aside by consent. However, nor is any of those cases, in our view, authority for the proposition that such an approach is not available if the appropriate jurisdiction can be identified, as discussed below.
Criminal proceedings
All the cases that were relied on in concluding, as the Court did in Lashansky, that “the ‘better view’ is that consent of all parties will confer upon the Court a power to recall a perfected order” were decided in relation to civil proceedings.
No authority on the question whether that power could be available in criminal proceedings has been identified in these proceedings, but the power to set aside an order made in a criminal appeal after the order has been entered has been conferred by legislation on both the Federal Court and the NSW Court of Criminal Appeal.
Order 35 r 7 of the original Federal Court Rules, discussed in Eastman v The Queen [2008] FCAFC 62 (Eastman) at [17] and [25], did not distinguish between civil and criminal matters, but permitted orders to be varied or set aside before being entered (r 7(1)), or afterwards, by the Court when not exercising appellate or related jurisdiction, among other things if “the party in whose favour the order was made consents” (r 7(2)(f)). That is, the rule contemplated that an order made in the court’s original jurisdiction in criminal proceedings, and perfected, could be set aside by consent.
Rule 39.05 of the Federal Court Rules 2011 (Cth) now permits the Court to vary or set aside a judgment or order after it has been entered if, among other things, “the party in whose favour it was made consents” (r 39.05(f)). The current rule does not appear to be limited to civil proceedings or by reference to whether the Court is exercising original or appellate jurisdiction, so it now contemplates the setting aside, by consent, of a perfected order made in the exercise of appellate jurisdiction.
In NSW, rr 50C(2) and (3) of the Criminal Appeal Rules permit the Court of Criminal Appeal to set aside or vary an order that has been entered, either:
(a)of its own motion, within 14 days after the order is entered; or
(b)on application made within 14 days after the order is entered.
We accept the respondent’s submission that the court’s power to set aside a judgment by consent depends on the court having the necessary jurisdiction, and that, as noted in Thompson Australian Holdings Proprietary Limited v The Trade Practices Commission & Ors (1981) 148 CLR 150 at 163:
The parties by consent cannot confer power upon the Court to make orders which the Court lacks power to make.
We also accept that any such jurisdiction must be found within “the text of the governing statutes and any express or implied powers to be seen therein” (DJL, approved in Burrell at [14]).
Jurisdiction of ACT Court of Appeal
In the ACT, the power to set aside an order after it has been entered is dealt with in the Court Procedures Rules; r 1613(2) gives the Supreme Court a power in civil proceedings generally to “set aside an order at any time” if “the party who has the benefit of the order consents”. That provision is explicitly applied to an appellate proceeding that is a civil proceeding (rr 5001(2) and (3)), but is explicitly not applied to any other appellate proceeding (r 5001(1)).
Conclusions
In these circumstances, and despite our view:
(a)that the appeal fits the description of an unfinished appeal;
(b)that it could on the authority of Lapa be re-opened if the orders already made had not been perfected; and
(c)that the interests of justice would be served by being able to finalise this matter quickly, rather than leaving the applicant no route to pursue appeal ground (d) other than via the High Court;
we reluctantly conclude that, in the absence of any explicit jurisdiction to do so, we cannot re-open a criminal appeal, even an unfinished one, even with the consent of the parties, and even in the interests of justice.
The orders we made in upholding the appeal reflected careful consideration of all appeal grounds and our conclusions about what orders should be made. It is unfortunate that our conclusions above preclude us re-opening the appeal and providing further reasons for those orders.
The application is refused.
| I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: |