PCCEF Pty Ltd v Geelong Football Club Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2017 00030

PCCEF PTY LTD (ACN 130 656 147)	Plaintiff
v
GEELONG FOOTBALL CLUB LTD (ACN 005 150 818)	Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2018
DATE OF JUDGMENT:	23 May 2018
CASE MAY BE CITED AS:	PCCEF Pty Ltd v Geelong Football Club Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 258

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PRACTICE AND PROCEDURE – Application for leave to re-open case – Application made after final Orders perfected – Whether s 49 of the Civil Procedure Act 2010 confers power to revisit perfected Orders – Extent to which equitable jurisdiction to revisit perfected Orders made in equity remains – Application dismissed for want of jurisdiction – In re St Nazaire Co (1879) 12 Ch D 88 – Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 – DJL v The Central Authority (2000) 201 CLR 226 – Burrell v The Queen (2008) 238 CLR 318 – Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12 – Civil Procedure Act 2010 s 49

PRACTICE AND PROCEDURE – Application for leave to re-open after judgment – Whether “truly exceptional circumstances” established – Whether fresh evidence available which would likely reverse outcome – Whether error was inadvertent though a result of deliberate conduct – No “truly exceptional circumstances” – Australian Super Developments Pty Ltd v David Wellesley Marriner & Ors (No 2) [2015] VSC 315 – Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 – Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355

COSTS – Application for special costs Order – Whether reliance on legal technicality justifies the award of costs on a special basis – Where Court was misled – Special costs Order appropriate – J-Corp Pty Ltd v Australian Builders Labourers’ Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 – Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399 – Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237 – Supreme Court Act 1986 s 24 – Supreme Court (General Civil Procedure) Rules 2015 rr 63.28, 63.31

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P D Corbett QC with J C Hooper	Strongman & Crouch Solicitors
For the Defendant	P Bick QC with D F McAloon	B2B Lawyers

HIS HONOUR:

By its summons dated 24 November 2017, PCCEF Pty Ltd (“PCCEF”) applies for leave to amend its originating motion and to re-open the trial to adduce new evidence to advance a new claim of rectification, notwithstanding that this Court has both delivered judgment in respect of that originating motion and made final Orders to give effect to that judgment. Geelong Football Club Ltd (“the Defendant”) seeks a special costs order in respect of its summons of 6 July 2017 and resists the grant of leave to PCCEF to re-open the proceeding. Before turning to the substance of these applications in detail, it is helpful to set out the background of this highly regrettable and rather disgraceful litigation.[1]
[1]See also Transcript (29 November 2017), 1–2 before Sifris J.

Background

By its Originating Motion of 17 February 2017, “Point Cook Community Entertainment Facility Pty Ltd (ACN 123 118 187)” (“Pt Cook”) sought a declaration from this Court as to the construction of the market rent review provisions of a commercial lease to which it and the Defendant were said to be a party. The matter proceeded to trial on 30 May 2017, where Pt Cook made legal submissions as to the proper construction of the putative lease, and where there were no factual issues in controversy or any reliance on rectification. Judgment was handed down on 9 June 2017 in Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313, rejecting the central contention of Pt Cook that the lease did not allow the rent to reduce during the term of the lease. Final Orders were authenticated on 14 June 2017, substantially in favour of the Defendant.

Prior to trial, Mr Michael Charles Vickers-Willis, a director of PCCEF, swore an affidavit deposing inter alia that:[2]
[2]Affidavit of Michael Charles Vickers-Willis (17 May 2017), [1]–[3], [6], [8].

(a) he is a director of “the plaintiff” (i.e. Pt Cook, having regard to the ACN specified in the Originating Process);

(b) “the plaintiff” is the owner of the relevant premises;

(c) on 1 October 2009, “the plaintiff” entered into a lease over the premises with the Club and a copy of the lease is at “LKD-1”;

(d) on or around 1 May 2014, the Club instigated negotiations with “the plaintiff” concerning the “forthcoming market rent review”; and

(e) on 1 June 2014, “the plaintiff” decided not to initiate a market rent review or seek to increase the rent on 5 June 2014.

On 3 July 2017, my associates received the following email from Grindal & Patrick, the solicitors for Pt Cook:[3]
[3]Email from Grindal & Patrick to the Court (3 July 2017) (formalities omitted).

We refer to the judgment of Justice Croft delivered on 9 June 2017 in proceeding number S ECI 2017 00030.
The Originating Motion and all subsequent documents filed with the Court listed the parties as follows:
•The Plaintiff was Point Cook Community Entertainment Facility Pty Ltd (ACN 123 118 187) (Plaintiff); and

• The Defendant was Geelong Football Club Ltd.

Last week, we became aware that the Plaintiff had been deregistered on 25 August 2010. As a matter of law, we cannot act for the Plaintiff as it does not exist, and did not exist on the date that the proceeding was commenced. We are therefore writing this email solely in our capacity as officers of the Court.
We suggest that the proceeding be called on for mention before Justice Croft to bring these matters to his Honour’s attention and for a discussion regarding the appropriate orders to be made.
Both the solicitors for the Defendant and solicitors for the current landlord of the premises, PCCEF Pty Ltd, have been copied into this email. Reid Bettridge of B2B Lawyers acts for the Geelong Football Club Pty Ltd and Jonathan Joseph of Strongman & Crouch acts for PCCEF Pty Ltd.

It is now apparent that while the named plaintiff in the Originating Process was described as “Point Cook Community Entertainment Facility Pty Ltd”, rather than “PT Cook Community Entertainment Facility Pty Ltd”, the ACN of Pt Cook was specified and it appears that no entity has ever been registered as “Point Cook Community Entertainment Facility Pty Ltd”.[4] The document which specified Pt Cook as the lessee, and which was construed in Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313, was in fact an agreement for lease which was superseded by the final lease[5]—albeit one which was in the same terms—that was concluded between PCCEF and the Defendant on 1 October 2009.

[4]It is also now apparent that the exhibit sheets to the Affidavits of Mr Donaldson (21 February 2017) and Mr Michael Vickers-Willis (15 May 2017) contained a court heading describing the Plaintiff as “PCCEF Pty Ltd ACN 130 656 157”.

[5]See Exhibit RB-3 to the Affidavit of Reid Bettridge (6 July 2017).

The matter was listed for directions on 7 July 2017 to deal with this unfortunate error. On 6 July 2017, the Defendant filed a summons seeking:

1.An order that the references to Pt Cook Community Entertainment Facility Pty Ltd in the orders made on 9 June 2017 and authenticated on 14 June 2017 (9 June Orders) be substituted with references to PCCEF Pty Ltd.
2.In the alternative to the order at paragraph 1:
a.an order that PCCEF Pty Ltd be joined to the proceeding as an additional plaintiff pursuant to r 9.07(1) of the [Supreme Court (General Civil Procedure) Rules 2015]; and
b.by way of supplemental order to the 9 June Orders:
i.A declaration that the declarations at paragraphs 1 and 2 of the 9 June Orders are binding upon PCCEF Pty Ltd; and
ii.An order that the costs payable pursuant to order 3 of the 9 June Orders are payable by PCCEF Pty Ltd.

3.For all such further or other orders as this Honourable Court deems appropriate consequent on the making of the orders referred to above.
4.An order that PCCEF Pty Ltd pay the defendant’s costs of the summons.

At the directions hearing on 7 July, reference was made to the position of PCCEF that it reserved the right to contend that the proceeding was a nullity because the then plaintiff Pt Cook did not exist.[6] To avoid this issue, the Defendant indicated that it would commence a proceeding seeking the reinstatement of Pt Cook nunc pro tunc, and the present proceeding was adjourned sine die pending the resolution of that application. Upon the filing of that application by the Defendant, PCCEF sought and was granted leave to intervene to oppose the reinstatement of Pt Cook, both at first instance and on appeal. On 13 October 2017, Randall AsJ made Orders reinstating Pt Cook,[7] which were confirmed on 29 November 2017 upon the hearing of the appeal by Sifris J,[8] with His Honour’s reasons published subsequently on 7 December 2017.
[6]See Transcript (7 July 2017), 5; see also Exhibit RB-4 to the Affidavit of Reid Bettridge (6 July 2017), where the solicitors for PCCEF wrote in an email dated 6 July 2017 that PCCEF “is not a party to the proceeding before the Court, and because, in circumstances where the plaintiff in the proceeding was deregistered in 2010, it reserves the right to contend that the proceeding is a nullity”.
[7]Re Geelong Football Club Ltd [2017] VSC 633.
[8]Re Pt Cook Community Entertainment Facility Pty Ltd [2017] VSC 727, [21].

Another issue which was raised at the directions hearing of 7 July 2017 was whether the reality was that PCCEF was conducting the litigation, notwithstanding that the proceeding was brought in the name of Pt Cook. The following exchange occurred, which, as will be explored in greater detail in the context of the costs application, seems to show that Senior Counsel for PCCEF maintained that, as a matter of fact, the litigation to date had not been conducted on behalf of PCCEF but only on behalf of Pt Cook, the two being distinct entities in a real sense:[9]
[9]Transcript (7 July 2017), 6–7.

HIS HONOUR: I think you’re - I mean my comment is a general comment in terms of efficiency of proceedings and costs et cetera, et cetera, but I think you touch upon an issue which was troubling me; which is whether or not the plaintiffs, whoever they are, whether the proper plaintiff has had an opportunity to put its case in the trial that’s happened.
MR CORBETT: Yes, Your Honour.
HIS HONOUR: If we’ve got a situation where it’s simply the wrong name of a party, that’s quite simple to fix because if a trial is run in the wrong name but really by the same people who would be running the trial for the right name there’s presumably no injustice done because arguments are put, it’s the same entity really just there's a problem with the name. But you’re saying to me it’s more than that.
MR CORBETT: Yes.
HIS HONOUR: It’s really a different entity.
MR CORBETT: It’s a different - very much so a different entity indeed that the stakeholder is in the different entity - there are more stakeholders in the different entity. And, Your Honour, what Your Honour says is accurate that this is not just a repetition of the - what we’re contemplating is not simply a repetition of the previous action as a matter of just pure construction. And that's what I want time to consider.
HIS HONOUR: Yes.
MR CORBETT: And indeed there may be consequences for other parties, or other persons, as a result of the outcome of that new proceeding.

On 15 November 2017, the Defendant filed a summons seeking Orders that Mr Vickers-Willis and several solicitors of Grindal & Patrick who had acted for Pt Cook in the proceeding provide evidence on affidavit as to the circumstances in which instructions were given and advice conveyed. As the Defendant submits, that PCCEF is, and always was, the true protagonist in the proceeding was confirmed by PCCEF in its letter to the Defendant dated 22 November 2017:[10]
[10]A copy of this letter was handed up to the Court—without objection—at the hearing on 3 May 2018, see Transcript (3 May 2018), 55–6.

We are instructed to note the following by reference to the numbered paragraphs in the summons.
1(i)At all times prior to the commencement of the proceeding, Michael Vickers-Willis provided instructions and received advice from [Grindal & Patrick] in relation to the dispute the subject of the proceeding.
1(ii)Mr Vickers-Willis considers that he provided such instructions and received such advice in his capacity as a director of the landlord, PCCEF Pty Ltd (ACN 130 656 147), and not on behalf of the (then) deregistered plaintiff.
1(iii)Mr Vickers-Willis provided instructions to Grindal & Patrick to commence the proceeding.
1(iv)Mr Vickers-Willis considers that he provided such instructions in his capacity as a director of the landlord, and not on behalf of the (then) deregistered plaintiff.
1(v)At all times after the commencement of the proceeding, Mr Vickers-Willis provided instructions in relation to the dispute the subject of the proceeding and the proceeding.
1(vi)Mr Vickers-Willis considers that he provided such instructions in his capacity as a director of the landlord, and not on behalf of the (then) deregistered plaintiff.

We are instructed to note more generally that:
1.Mr Vickers-Willis considers that it was by oversight that the incorrect entity was named as plaintiff in the writ and that this error was not identified at an earlier time;
2.Mr Vickers-Willis regrets that oversight, and the consequences that have, and that may, flow from it. He notes, however, that he was not alone in making that oversight;
3.our client considers that the matters noted above address your client's 15 November 2017 summons insofar as it seeks relief against our client or Mr Vickers-Willis;
4.our client requests your confirmation as to whether your client will consent to orders providing for its 15 November 2017 summons to be dismissed insofar as it seeks relief against our client or Mr Vickers-Willis; and
5.our client considers that the dismissal of your client’s 15 November 2017 summons as contemplated in paragraph 4 above should be with no order as to costs, including in light of the matters noted in paragraph 3 of our letter to you dated 27 October 2017.

Please provide the confirmation requested in paragraph 4 by 2pm tomorrow, noting that your client’s 15 November 2017 summons is returnable this Friday 24 November 2017.

By consent Orders made on 23 November 2017, the summons of 15 November 2017 was dismissed as against PCCEF Pty Ltd and Mr Vickers-Willis. While no Orders have been made with respect to the summons insofar as it relates to certain solicitors employed by Grindal & Patrick, it has not been pressed.

At the directions hearing in this proceeding on 18 December 2017, the parties provided substantially agreed proposed Orders that provided inter alia that the “name of the Plaintiff be amended to PCCEF Pty Ltd (ACN 130 656 147) and the title to the proceeding be amended accordingly”. This disposed of the substance of the summons of 6 July 2017, with the remaining issue of costs being the subject of the present application for a special costs order. Against this background, I turn now to consider the application for leave to reopen the trial.

Application to re-open trial and amend originating motion

By its summons of 24 November 2017, PCCEF seeks Orders that:

1.The plaintiff have leave to file and serve an Amended Originating Motion in the form of the document attached and marked “A”.
2.The plaintiff be granted leave to re-open its case and tender further evidence in support of the relief sought in the Amended Originating Motion.
3.The further trial of this proceeding be listed for further hearing on a date to be fixed.
4.Such further or other orders and directions as the Court deems appropriate.

5. Costs.

The new claim which PCCEF now seeks leave to bring is that there was a common intention that the rent review provisions of the lease would not allow the rent to decrease during the term of the lease, and that the lease should be rectified accordingly. The further evidence which the Defendant seeks to adduce in support of this claim is identified clearly,[11] and includes further affidavits of Mr Vickers-Willis,[12] the affidavit of Mr Lachlan Kirwan Donaldson,[13] the relevant archived documents and the relevant non-archived documents.[14]

[11]See Affidavit of Michael Charles Vickers-Willis (7 December 2017), [4(b)] (“the Second Vickers-Willis Affidavit”); Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [16].

[12]Second Vickers-Willis Affidavit; Affidavit of Michael Charles Vickers-Willis (9 March 2018) (“Third Vickers-Willis Affidavit”).

[13]Affidavit of Mr Lachlan Kirwan Donaldson (9 March 2018).

[14]Second Vickers-Willis Affidavit, [4(b)], see also [4(b)(iii)] regarding one letter which was already evidence in the proceeding; and see below, [29]–[30].

Jurisdiction

A threshold issue that must be determined before this Court can consider this summons is whether the Court, having made final Orders, is functus officio, and therefore lacks the requisite jurisdiction to grant the relief sought. The Defendant referred the Court to Burrell v The Queen,[15] where a majority of the High Court found that upon making final Orders, a court will ordinarily lack jurisdiction to revisit those Orders:[16]
[15](2008) 238 CLR 218.
[16]Burrell v The Queen (2008) 238 CLR 218 at 224–5 [18]–[20], [22]; see also Achurch v The Queen (2014) 253 CLR 141 at 152 [14], 153 [16]; Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12.

18.The formal recording of the orders of a superior court of record is often referred to as the “perfecting” of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been “perfected”. This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy?
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.

…
22.Neither the appellant nor the respondent challenged any of these propositions. Rather, the accepted premise for the debate was that formal recording of the orders of the Court of Criminal Appeal ordinarily does mark the end of that Court’s power to consider the issues which were tendered in the proceedings that yielded those orders. Hence the expression of the question for this Court as whether the Court of Criminal Appeal had power to reopen the appellant’s appeals and reconsider its orders. And as explained earlier, if the Court of Criminal Appeal had power to reopen the appellant’s appeals and reconsider the orders it had made, that power must be found in “the text of the governing statutes and any express or implied powers to be seen therein”.[17] That is, the power must be found in the Criminal Appeal Act 1912 (NSW).
[emphasis in original]

The position set out by the High Court in the foregoing passage of Burrell v The Queen is that the Criminal Court of Appeal could only have power to reopen appeals and reconsider orders it had made if that power arose from statute. Thus, unless a relevant statutory power can be identified or the principles expounded in Burrell v The Queen can be distinguished from their otherwise obvious application to the present case, the application brought by PCCEF must fail because this Court is functus officio.

[17]DJL (2000) 201 CLR 226 at 247 [43].

Reference ought to be made to both the Civil Procedure Act 2010 (“the CPA”) and the Supreme Court (General Civil Procedure) Rules 2015 (“the Rules”), and the question of whether they confer on this Court a power of the kind referred to in Burrell v The Queen.[18] PCCEF made reference to the comments of the Court of Appeal in Ezra Abrahams Pty Ltd v Milburn as to the effect of the CPA on applications for leave to re-open:[19]

58.The principles summarised at [46]–[57] above must now be applied having regard to the overarching purpose in s 7(1) of the [Civil Procedure Act 2010], namely, ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’. Section 8(1) provides that a court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers. Section 9(1) provides that, in making any order in a civil proceeding, a court must further the overarching purpose by having regard to a number of objects, including the just determination of the proceeding, the efficient conduct of the business of the court, the efficient use of judicial and administrative resources and the timely determination of the proceeding. Section 49(1) empowers the court to ‘give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding’.
[emphasis added]

Naturally, the same approach must be taken in the present case. Yet the question remains—as the Court of Appeal was not considering, nor did it apparently turn its mind to, circumstances in which final Orders have been perfected—whether the CPA confers on this Court a power to revisit its own Orders.

[18](2008) 238 CLR 218.

[19][2017] VSCA 355, [58]; Transcript (3 May 2018) 20–1.

In relation to the emphasised passage of the decision of the Court of Appeal in Ezra Abrahams Pty Ltd v Milburn—which was not addressed to the issue presently before the Court—the power conferred by sub-s 49(1) of the CPA must be read in the context of the immediately following sub-section:

49 Court’s power to order and direct trial procedures and conduct of hearing
(1)In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
(2)A direction or an order under subsection (1) may be given or made by the court at any time—
(a) before a hearing commences; or
(b) during a hearing.

…

Clearly, sub-s 49(2) of the CPA forecloses an inference that s 49 confers the power on this Court to revisit its own Orders once perfected. The conferral of such jurisdiction would be antithetical to the purpose of the CPA, being the just, efficient, timely and cost-effective resolution of the real issues in dispute.[20] This conclusion is reinforced by the limited nature of the power conferred by s 52 of the CPA to revoke or vary case management Orders, as well as by the Explanatory Memorandum and the Second Reading Speech.[21] For these reasons, it is inescapable that the CPA does not by implication have the radical effect of conferring on this Court jurisdiction to hear further evidence after the making of final Orders.

[20]See Civil Procedure Act 2010, ss 1(c), 7; Transcript (3 May 2018), 61–2.

[21]Explanatory Memorandum, Civil Procedure Bill 2010, cll 47, 52; Victoria, Parliamentary Debates, Legislative Assembly, 24 June 2010 (Rob Hulls, Attorney General), 2611. Clause 47 of the Explanatory Memorandum provided: “… The powers set out in this clause are a codification of existing case management powers held by the courts. The Government encourages the courts to use these powers to actively manage cases and to further the overarching purpose—that is, to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between parties.” (emphasis added).

In a similar vein, there are no matters of any significance occurring after judgment in this case, let alone any which would engage rule 66.14 of the Rules—which empowers the Court to make such Orders as the nature of the case requires on the ground of matters occurring after judgment—such that this Court has jurisdiction to reopen its judgment.[22]
[22]See also Lollis v Loulatzis (No 3) [2008] VSC 231, [35]–[38]; Giedo van der Garde BV v Sauber Motorsport AG (No 2) [2015] VSC 109, [13].

What is more, there is high authority for the specific proposition that Courts do not have jurisdiction to permit a party to reopen its case after judgment where the basis for the application to reopen is an error for which the applicant is responsible. As Mason CJ stated in Autodesk Inc v Dyason (No 2):[23]

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.

This statement seems to apply squarely to the present case, with the prima facie effect that the present application must be dismissed for want of jurisdiction.

[23](1993) 176 CLR 300 at 303; affirmed Elliot v The Queen (2007) 234 CLR 38 at 48 [32]; see also Aktas v Westpac Banking Corporation (2010) 241 CLR 570 at 573 [6].

Senior Counsel for the Defendant also made reference to the earlier judgments of Barwick CJ and Gibbs J in Bailey v Marinoff,[24] as well to a decision of this Court in Lollis v Loulatzis & Anor (No 3)[25] that predated Burrell v The Queen by a little over a month, all of which are concordant with the position set out in Burrell v The Queen.[26] For example, in Bailey v Marinoff, Barwick CJ found as follows:[27]

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 an end in that court and is in its 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.

Nor have more recent decisions detracted from this position. In Commonwealth v Davis Samuel Pty Ltd (No 11),[28] Refshauge ACJ noted the general rule that once a court has pronounced judgment and final orders are perfected, the Court which made those orders is functus officio, and its powers to reconsider the subject matter of the proceedings is at an end, before identifying several limited exceptions, being the slip rule, the right of appeal, and where the judgment is a nullity.[29]

[24](1971) 125 CLR 529 at 530–1; 539–40.

[25][2008] VSC 231, [12]; see also Giedo van der Garde BV v Sauber Motorsport AG (No 2) [2015] VSC 109, [13].

[26](2008) 238 CLR 218 at 224–5 [18]–[22], extracted above at [11].

[27](1971) 125 CLR 529 at 530–1.

[28][2017] ATSC 2.

[29]Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ATSC 2, [98]–[105]; affirmed in Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2017] VSCA 22, [84].

Exception for Orders made in equitable jurisdiction?

Against this position, PCCEF submits that as the relief granted in the final Orders was declaratory and therefore an exercise of the equitable jurisdiction of this Court, the preceding authorities are distinguishable and this Court,[30] like the Court of Chancery, has jurisdiction to revisit its Orders where they were made in the exercise of its equitable jurisdiction. In this respect, reference was made to DJL v Central Authority[31] where a majority of the High Court noted that the Court of Chancery had the power to re-open and rehear cases, even after the decree had been entered.[32] Moreover, their Honours stated:[33]

The Court of Chancery also had had jurisdiction[34] to enjoin, by a species of common injunction, the enforcement of judgments fraudulently obtained, including those recovered in the common law courts, or to oblige the holder of such a judgment to enter satisfaction of it upon the judgment roll of the common law court. The exercise of this jurisdiction involved the institution of a separate proceeding. In dealing with the matter, the Court of Chancery might send the issues respecting the alleged fraud to a common law court for trial by a new jury.[35] It is unsettled whether this jurisdiction might have been invoked to set aside judgments by reason of the availability of “fresh evidence”.[36]
A mainspring of the equity jurisdiction was the view taken in Chancery of the deficiencies of the common law procedures, particularly with respect to appeal processes and the absence of a record of the evidence which had been called before the jury. It is significant that this was at a time before the creation of the modern statutory appellate structure in England. The equity jurisdiction remains in Australia, at least with respect to the impeachment of judgments for fraud, but the preferable course remains the institution of a separate proceeding. That was the view expressed by Barwick CJ in McDonald v McDonald.[37]
[emphasis added]

Their Honours went on to approve the rule as stated by Barwick CJ in Bailey v Marinoff,[38] subject to the exceptions just expounded.[39]

[30]See Transcript (3 May 2018), 21.

[31](2000) 201 CLR 226.

[32]DJL v The Central Authority (2000) 201 CLR 226 at 244 [35]; Transcript (3 May 2018), 22–3.

[33]DJL v The Central Authority (2000) 201 CLR 226 at 244–5 [36].

[34]CDJ v VAJ (1998) 197 CLR 172 at 197.

[35]Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd [No 2] (1992) 37 FCR 234 at 239. See also Owens Bank Ltd v Bracco [1992] 2 AC 443 at 483, 489.

[36]Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd [No 2] (1992) 37 FCR 234 at 239–40.

[37](1965) 113 CLR 529 at 532–533. See also Wentworth v Rogers [No 5] (1986) 6 NSWLR 534 at 538; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 699–700.

[38](1971) 125 CLR 529 at 530, extracted above, [16].

[39]DJL v The Central Authority (2000) 201 CLR 226 at 245 [38].

In In re St Nazaire Co,[40] a decision to which reference was made in DJL v Central Authority,[41] Jessell MR found that an effect of the Judicature Act 1873 (Eng) was to confer upon appellate courts the exclusive power to rehear decrees which previously could have been reheard by judges of the Court of Chancery.[42] The Master of the Rolls so found because the power of the judges of the Court of Chancery to rehear their own decrees was an exercise of appellate jurisdiction, and while the whole of the power of the Court of Chancery was conferred upon the High Court of Justice by the Judicature Act, this was with the exception of appellate jurisdiction which was conferred upon the Court of Appeal.[43] This is concordant with the position as set out in Seton’s Judgment and Orders:[44]
[40](1879) 12 Ch D 88.
[41](2000) 201 CLR 226 at 244 [35].
[42]In re St Nazaire Co (1879) 12 Ch D 88 at 97; see also In Re Suffield and Watts; Ex Parte Brown (1888) 20 QBD 693 at 697, 698.
[43]In re St Nazaire Co (1879) 12 Ch D 88 at 98–9.
[44]Arthur Robert Ingpen, Frederic Turner Bloxam and Henry G Garrett, Seton’s Judgments and Orders (Sweet & Maxwell, 7th ed, 1912), Vol I, 188.

No jurisdiction to review
Since the Judicature Act, 1873, the High Court has no jurisdiction to review its own order, even by means of an independent action, and where there is an error in law apparent on the face of the order, such jurisdiction is essentially appellate: Charles Bright & Co Ld v Sellar [1904] 1 KB 6.
…
Although the Court has no power to vary or alter a perfected judgment except under O. XXVIII, 11: Re Suffield 20 QBD 697, CA; Re St. Nazaire Co 12 Ch D 88; Glasier v Rolls 59 LJ Ch 63; 38 WR 113; 62 LT 305; yet where a winding-up order had been pronounced, but not passed or entered, the Court by consent dismissed the petition: Re Crown Bank 44 Ch D 634. As to orders not passed and entered, see Preston Bank v Allsup [1895] 1 Ch 144.

The parties did not refer to Clone Pty Ltd v Players Pty Ltd (in liq),[45] which is understandable given that it was published two days before their written submissions in reply were filed. In that case, the High Court considered the two ways in which decrees of the Court of Chancery could be set aside once enrolled.[46] The first was a bill of review, where the Court undertaking the review had very broad powers, and which could succeed on the basis of new matters discovered since the decree or on the basis of substantial errors of law.[47] The High Court unanimously found that bills of review, being essentially appellate in nature, did not survive the Judicature Act reforms.[48] A party seeking to agitate matters which could once have been remedied by a bill of review must now appeal to a higher court.
[45][2018] HCA 12.
[46]Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12, [43].
[47]Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12, [45].
[48]Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12, [48].

The second means by which a decree could be set aside even once enrolled was an original bill, which could be issued without leave, to rescind or “annul” the decree on the ground of fraud and imposition.[49] This power “remains part of the equitable powers of the Supreme Court of South Australia by operation of the common provision vesting in the Supreme Court the jurisdiction of the High Court of Chancery”,[50] and by the same reasoning, part of the equitable powers of the Supreme Court of Victoria. There was no allegation of fraud in the present case, and accordingly I am satisfied that it is of no significance—for the purposes of ascertaining the jurisdiction of this Court—that the Order which PCCEF seeks to revisit is a declaration, which relies on the equitable jurisdiction of the Court.
[49]Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12, [44].
[50]Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12, [52], citing Supreme Court Act 1935 (SA), s 17(2)(a)(i).

Finally, reference was made by Senior Counsel for PCCEF to the Orders made by consent on 18 December 2017 amending the name of the plaintiff in this proceeding from “Point Cook Community Entertainment Facility Pty Ltd (ACN 123 118 187)” to “PCCEF Pty Ltd (ACN 130 656 147)”, and it was suggested that as the proceeding had in this way already been reopened in part, this distinguishes the present case from the authorities which dictate the narrow circumstances in which perfected Orders may be revisited.[51] While PCCEF suggests that this amounts to the Court having “in effect, recalled the judgment” and that the finality of the judgment is thereby diminished,[52] this cannot be accepted. As the Defendant submits,[53] there is a clear distinction between the operation of the slip rule and the principles which underlie the grant of leave to re-open a party’s case, and this was substantially recognised by the High Court in Burrell v the Queen:[54]

21.The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order[55] 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.

What is more, it would be an odd result—to say the least—if on 17 December 2017 this Court did not have jurisdiction to revisit its own Order, but as a result of an Order made the following day that jurisdiction was obtained. Accordingly, the contention that the error in relation to the name of the plaintiff affects the jurisdiction of this Court to reopen the substantive matters which were subsumed by its final Orders must be rejected.

[51]Transcript (3 May 2018), 25.

[52]Transcript (3 May 2018), 25–6.

[53]Transcript (3 May 2018), 60.

[54]Burrell v The Queen (2008) 238 CLR 218 at 224–5 [21]; see also Lollis v Loulatzis & Anor (No 3) [2008] VSC 231, [12]–[13]; Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ATSC 2, [100], [103].

[55]L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595.

Consequently, I am satisfied that there is nothing in the present circumstances which detracts from the prima facie position set out in Burrell v The Queen that a Court does not have jurisdiction to revisit its own final Orders once perfected, and it follows that the summons of PCCEF must be dismissed.

Merits of application to re-open

Despite finding that the Court lacks the necessary jurisdiction to hear the application brought by PCCEF, it is appropriate to consider the merits of that application, both for completeness and because of its relevance for costs purposes. PCCEF submits that the Court should be satisfied that the justice of the case favours the grant of leave to reopen for either or both of the following reasons:[56]

(a)First, there has been an inadvertent error by the landlord’s former legal advisors in the sense that their decision not to adduce pre-lease and post-lease communications in the proceeding was a decision impaired by a misapprehension of fact that such evidence would not assist the plaintiff’s claims;
(b)Secondly, there is fresh evidence of pre-lease and post-lease communications that ought to have been retrieved from the archives of the landlord’s former solicitors and adduced in the proceeding but was overlooked because of a misapprehension of fact by the landlord’s former legal advisors that pre-lease and post-lease communications were irrelevant.

[56]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [2].

While there was no express disagreement as to the law governing applications of this kind, after judgment has been delivered but before final Orders made, it is appropriate to set out the legal principles governing the exercise of the Court’s discretion. The recent Court of Appeal decision of Ezra Abrahams Pty Ltd v Milburn helpfully summarises the bulk of the principles relevant to applications for leave to re-open a party’s case, and for this reason it is convenient to set out that judgment at some length:[57]
[57]Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355, [46]–[57]; see also at [58], extracted above at [12].

46.The overriding principle is ‘whether, taken as a whole, the justice of the case favours the grant of leave to re-open.’[58] This principle was stated as follows by Kirby J in Goldsmith v Sandilands[59] … :
[58]Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1, 7 [26] (‘Spotlight’).
[59](2002) 190 ALR 370 (‘Goldsmith’).
The guiding principle for the grant or refusal of leave to call evidence in response to the evidence of another party, where this is sought by a party, is, ultimately, what the justice of the case — including procedural fairness — requires. That principle should not become unduly entangled in precedents or procedural rules.
Whilst efficiency and economy in the conduct of civil trials are important requirements of the contemporary trial process, those objectives are valid only as they contribute to just outcomes. Once the trial process is under way, rigidity should be avoided, certainly at a time before the evidence has been closed and before the decision foreshadowed or announced. To exclude relevant evidence during a trial, in response to evidence tendered by another party in its case, simply because it could, or should, have been adduced earlier may, in particular circumstances, deny the party tendering such evidence the fair opportunity to present its case. It may render that party unjustly hostage to the defective perception, imagination and industry of its legal representatives. This is why a large discretion is reserved to the trial judge in civil trials to admit or reject evidence in rebuttal or reply. In an appeal, the exercise of the judge’s discretion in such matters is subject to the usual restraints upon appellate disturbance of discretionary decisions.[60]
[60]Goldsmith (2002) 190 ALR 370, 385 [58]–[59] (citations omitted).

47.There are four recognised categories of case in which a court may grant leave to reopen a party’s case: where fresh evidence, unavailable or not reasonably discoverable previously, becomes known and available; where there has been inadvertent error; where there has been a mistaken apprehension of the facts; and where there has been a mistaken apprehension of the law.[61] These categories are not closed.[62]
[61]Spotlight (2012) 46 VR 1, 7 [25], citing Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 [24].
[62]Spotlight (2012) 46 VR 1, 7 [26].
48.Where… a party relies on the ‘inadvertent error’ category in applying to re-open its case for the purpose of adducing additional evidence, the nature and reasons for the error are relevant in considering whether it is in the interests of justice to grant the application.
49.The distinction between the omission of evidence due to an error by counsel, and a tactical decision on counsel’s part not to adduce that evidence, was considered in Urban Transport Authority of NSW v Nweiser.[63] In that case, the plaintiff claimed damages for personal injuries against his employer. Counsel for the defendant employer decided not to call a particular witness because of an erroneous belief that the witness’s evidence would be inadmissible. Counsel closed the defendant’s case and, as the plaintiff did not adduce any evidence, counsel commenced his final address. The next morning, upon resumption of the hearing, counsel sought leave to re-open the defendant’s case to call the witness. The primary judge refused leave on the basis that counsel had made a deliberate decision not to call the witness.
[63](1992) 28 NSWLR 471 (‘Nweiser’).
50.The New South Wales Court of Appeal held that the judge had erred. The Court discussed three different situations involving a failure by counsel to adduce evidence: first, where the failure is unintentional; secondly, where the failure is deliberate but based on a factual or legal misapprehension; and thirdly, where the failure is deliberate and is intended to gain a tactical advantage for counsel’s client in the litigation. We will refer to these, respectively, as ‘the Nweiser unintentional category’, ‘the Nweiser intentional but mistaken category’ and ‘the Nweiser tactical category’.
51.Clarke JA, with whom Mahoney and Meagher JJA agreed, held that the judge had erred in basing his decision on the fact that counsel’s decision not to call the witness was deliberate, without taking into account the fact that that decision was based on a misapprehension. Clarke JA stated the relevant principles as follows:
Where, as here, a defendant announced the closing of its case and, there being no case in reply, a short time later sought leave to re-open because its counsel realised he had made a mistake it is difficult to discern how the interests of justice would be furthered by disallowing an application to re-open to call evidence which was clearly relevant to, and may have had a significant impact on, the issues in the case. It is true that the fact that there has been a deliberate decision not to call the witness whose evidence it is later sought to lead in a re-opened case is a relevant consideration. But there may be a number of reasons why a deliberate decision is made. It may, for instance, be made for tactical reasons.
On the other hand it may be that in the heat of the moment counsel has inadvertently overlooked facts proven in the opponent’s case or has otherwise acted on some misapprehension. Where the failure to lead evidence from a witness whom it is afterwards desired to call results from a tactical decision by counsel the courts will usually be disinclined to grant an application to re-open. Even in these circumstances, however, the court has a discretion to grant an application by a party to re-open its case and the interests of justice may dictate that the application be allowed. In short the fact that a deliberate decision was taken for tactical reasons is not decisive but remains an important factor.
If, however, counsel inadvertently fails to call a witness different considerations arise and, as it seems to me, if counsel makes a deliberate decision based on a mistaken apprehension of the nature of the evidence called against his client or the admissibility of the evidence which he seeks to call the justice of the case may well point to the granting of the application. The decision made by counsel in this case although a deliberate one stands in a very different category from one based on tactical grounds. It is more appropriately regarded as one in which counsel had made a mistake or failed to appreciate the relevance and admissibility of the evidence which he omitted to lead.
…
The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not [to] call the witness in the party’s case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel’s deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel.[64]
[64]Nweiser (1992) 28 NSWLR 471, 475–6, 478.

52.As noted in Nweiser, prejudice to the opposing party is a relevant factor to be weighed in the balance when determining whether it is in the interests of justice to allow a party to reopen its case. Clarke JA held that, on the facts of that case, the plaintiff would not have been prejudiced if the defendant had been permitted to re-open its case. This was because all that had happened between the closing of the defendant’s case and the application to re-open was that the defendant’s counsel had commenced his closing address. Clarke JA said that the position may be different where a party seeks leave to re-open its case after the other party has called evidence and it would be unjust to allow the first party to call further evidence.[65]
[65]Nweiser (1992) 28 NSWLR 471, 475.
53.Another matter which Clarke JA stated may be relevant to the exercise of the discretion whether to grant leave to re-open a party’s case is the importance of the evidence to be called if leave were granted.[66] He said that, if the evidence could not possibly affect the outcome of the trial, or was peripheral to the main issues, then the trial judge may well be justified in refusing to grant leave.[67] He concluded that the evidence to be given by the proposed witness in that case was relevant to the central issue at trial.[68]
[66]For a list of matters that may be relevant to the exercise of the court’s discretion to permit a plaintiff to re-open his or her case, see ASIC v Rich (2006) 235 ALR 587, 593 [18]; Advanced Fuels Technology Pty Ltd v Blythe [2017] VSC 250 [7] (‘Blythe’).
[67]Nweiser (1992) 28 NSWLR 471, 476–7.
[68]Nweiser (1992) 28 NSWLR 471, 477.
54.The issue of prejudice was discussed in Smith v New South Wales Bar Association,[69] which involved a disciplinary proceeding against a barrister. In that case, an application to re-open the barrister’s case for the purpose of adducing additional evidence was made after the hearing had concluded and judgment had been delivered, but before the order was entered. Brennan, Dawson, Toohey and Gaudron JJ stated the following:
[69](1992) 176 CLR 256 (‘Smith’).
If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application [to re-open]. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. …
Not every case involving error will invite further evidence: it will depend entirely on the issue that is opened up. If the issue is one that invites further evidence, then, prima facie and subject to the ordinary rules of evidence, that evidence should be allowed. We say prima facie because there may be situations in which the particular evidence involved would cause embarrassment or prejudice such that, in the circumstances, it would be unfair to allow it.[70]

55.The only civil case that the parties referred to the judge, and to this Court, in which the plaintiff applied to re-open her case after the defendant had made a no case submission, was Mayne v The MTT (No 1).[71] That case involved a claim for damages for personal injuries sustained by the plaintiff when the defendant’s bus collided with her bicycle. After the plaintiff closed her case, the defendant made a no case submission and elected not to call evidence. The plaintiff sought to re-open her case on the basis that her counsel had omitted, through inadvertence, to call evidence going to the visibility of the plaintiff to the defendant’s bus driver shortly prior to the accident. In opposing the application, counsel for the defendant submitted that granting the application to re-open would prejudice the defendant because it would be deprived of the opportunity to successfully defend the claim on the basis of the no case submission and also because, having elected not to call evidence, a potential interstate witness had been sent home.
56.Underwood J held that the justice of the case required that the application to re-open be granted, provided that the defendant was permitted to resile from its election. He stated that ‘[o]nce the defendant is freed from the election it made and permitted to call any evidence it wishes, no prejudice will result from an order granting the application’.[72] He added that ‘[h]ad this application been made at the end of the plaintiff’s case but before the defendant had been put to its election there is no doubt that the justice of the case would have required that it be granted.’[73] This was because the conduct of the defendant’s case, prior to making its election and the submission of no case to answer, had not been affected by the absence of the evidence the plaintiff sought to call.[74]
57.Henning v Lynch[75] was a criminal case in which the prosecutor had omitted to adduce, prior to closing the prosecution case, evidence that the breathalyser that was used to conduct a breath test on the defendant was an approved device. The prosecutor sought leave to adduce this evidence after the defendant made a no case submission. The Supreme Court of New South Wales held that the magistrate had erred in not permitting the prosecution to re-open its case to adduce the additional evidence. The Court treated the failure to adduce the evidence as a technical defect in the evidence and held that the applicable principle strongly favoured the re-opening of the prosecution case. The Court drew a distinction between an inadvertent failure to adduce evidence, as in the instant case, and an election not to adduce evidence. The Court said the following:
[W]here the defendant’s case has not been gone into and there is ready to be tendered some additional evidence which by accident, mistake or want of foresight has not been tendered before the prosecution case is closed, it is — to use the words of Cave J in Hargreaves v Hilliam … ‘a very fit and proper thing to allow the evidence to be given unless there is some very good reason.’[76]

[70]Smith (1992) 176 CLR 256, 266–7 (citations omitted).

[71][1991] TASSC 81 (‘Mayne’).

[72]Mayne [1991] TASSC 81 [4].

[73]Mayne [1991] TASSC 81 [4].

[74]Mayne [1991] TASSC 81 [4].

[75][1974] 2 NSWLR 254 (‘Henning’).

[76]Henning [1974] 2 NSWLR 254, 259.

It is clear from the cases that “truly exceptional circumstances” are required before a party will be permitted to reopen its case after judgment has been delivered, as is the case here. In Australian Super Developments Pty Ltd v David Wellesley Marriner & Ors (No 2),[77] judgment had been delivered but final Orders had not yet been made. Sloss J stated as follows:[78]

Where, as here, reasons for judgment have actually been delivered and all that remains is the making of final orders for the entry of judgment and costs, truly exceptional circumstances would be required to be demonstrated before the case could be re-opened. Furthermore, the applicant would also be required to satisfy the court that there was no lack of reasonable diligence on its part to bring forward the recently obtained evidence: see Commonwealth Bank of Australia v Quade.[79]

In this way, the state of the proceeding is relevant not only for ascertaining whether the Court has jurisdiction to hear an application for leave to re-open, but also for, assuming the Court does have such jurisdiction, considering whether leave ought to be granted.

[77][2015] VSC 315.

[78]Australian Super Developments Pty Ltd v David Wellesley Marriner & Ors (No 2) [2015] VSC 315, [70].

[79](1991) 178 CLR 138, at 141 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).

That this is the position is also apparent from policy considerations pertaining to the finality of litigation. In Spotlight Pty Ltd v NCON Australia Ltd,[80] the Court of Appeal considered a situation where judgment had been reserved but not yet delivered:[81]
[80](2012) 46 VR 1.
[81]Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1 at 5 [17].

There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be reopened. The need for finality in litigation is one.

Even in those circumstances, the Court of Appeal referred to the “very strict rule” that limits parties to the case that they conducted at trial:[82]

The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the reopened issues would be hard to define and as difficult to protect. The reopened hearing would then be bedevilled by arguments about whether one party or the other was seeking to take advantage of the reopening to polish parts of its case which were more or less within the scope of the reopened proceeding but not clearly on one side or the other of the prescribed limits.

[82]Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1 at 5–6 [18].

Significantly, PCCEF did not identify in its submissions any previous instance—after the fusion of law and equity in this State[83]—of a Court permitting a party to re-open its case after judgment has been delivered and final Orders have been made. It is well established that the time at which an application to reopen is made will affect the outcome of the application,[84] and I would venture to suggest—though it is not necessary to decide here—that the kind of circumstances which would justify the grant of leave to reopen a case after the delivery of judgment are of a fundamentally different order to those which are required to justify the grant of leave at an earlier stage in the proceedings. On the basis of the authorities to which reference has been made, it is clear that in the present circumstances this Court must not grant leave to re-open, assuming of course that it has jurisdiction to do so, unless “truly exceptional circumstances” are established. For the reasons which follow, this Court would not grant leave to re-open if it had such jurisdiction because:
[83]Cf. Plaintiff’s Points in Reply on Application for Leave to Re-open (3 May 2018), [2].
[84]Urban Transit Authority of New South Wales v Nweiser (1992) 28 NSWLR 471; CC Containers Pty Ltd v Lee (No 5) [2013] VSC 619, [18].

(a) the evidence sought to be adduced does not make it reasonably clear that PCCEF’s claim would have succeeded had it been adduced;

(b) the fresh evidence is not “fresh”;

(c) no inadvertent error is established; and

(d) even if any or all of (a)–(c) are false, the circumstances still do not rise to the level of “truly exceptional circumstances” as set out by Sloss J in Australian Super Developments Pty Ltd v David Wellesley Marriner & Ors (No 2).[85]

[85][2015] VSC 315.

Fresh evidence

PCCEF submits that leave ought to be granted for it to reopen its case because there is now evidence available which supports the construction or rectification of the lease in a manner contrary to the construction ultimately accepted by the Court in Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd.[86] Specifically, it is said “[n]ow that the file has been retrieved from archives by Grindal & Patrick since judgment was handed down on 9 June 2017, there is fresh evidence supporting the position that the common intention of the parties was that the rent under the lease could never decrease”.[87] In order to obtain leave to re-open PCCEF must satisfy the Court that:[88]

(a) there was no lack of reasonable diligence on its part to bring forward the recently obtained evidence; and

(b) it is reasonably clear that the fresh evidence would have produced an opposite verdict.

[86][2017] VSC 313.

[87]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [17].

[88]Commonwealth Bank of Australia v Quade (1991) 178 CLR 138 at 141.

The evidence now put forth by PCCEF in support of its application for leave to re-open falls into three broad categories.[89] First, certain documents within the archived files which were created by Donaldson Trumble around the time the Agreement for Lease and the Lease were being negotiated and prepared, which were only retrieved shortly after judgment was delivered (“the Archived Documents”), Donaldson Trumble being the firm of solicitors who acted for PCCEF in respect of the negotiation and drafting of the lease. By the time preparation for litigation began in late 2016, these files had been archived and were held by Grindal & Patrick.[90] The Archived Documents on which PCCEF now seeks to rely—and which are said to evidence that the contracting parties had the relevant common intention at the time the Lease was executed—are identified in the affidavit of Mr Vickers-Willis as follows:[91]
[89]Though it should be noted that the evidence on which PCCEF would rely if leave to re-open were granted is not necessarily limited to this evidence—see Summons (24 November 2017), [2].
[90]Second Vickers-Willis Affidavit, [28(c)(i)].
[91]Second Vickers-Willis Affidavit, [34].

(a)the initial draft dated 23 January 2007 of the subject lease (pages 166 to 204 of Exhibit MCVW-2)
(b)a letter dated 13 February 2007 from Coulter Roache to the plaintiff’s (then) solicitors, Donaldson Trumble (pages 205 to 208 of Exhibit MCVW-2);
(c)[a letter from Coulter Roache, the erstwhile solicitors for the Defendant, dated 15 February 2007, indicating inter alia agreement that “the rental will not decrease from the previous years (sic) rent”. (pages 164 to 165 of Exhibit MCVW-2)];
(d)an email dated 23 February 2007 from [Mr Vickers-Willis] to Donaldson Trumble (pages 209 and 210 of Exhibit MCVW-2);
(e)a further draft dated 5 March 2007 of the subject lease (pages 211 to 249 of Exhibit MCVW-2);
(f)an email dated 11 March 2007 from [Mr Vickers-Willis] to Donaldson Trumble and copied to Coulter Roache (page 250 of Exhibit MCVW-2);
(g)a further draft dated 13 March 2007 of the subject lease (pages 251 to 287 of Exhibit MCVW-2);
(h)an email dated 14 March 2007 from [Mr Vickers-Willis] to Donaldson Trumble and copied to Coulter Roache (pages 288 and 289 of Exhibit MCVW-2);
(i)a letter dated 14 March 2007 sent by email from Coulter Roache to Donaldson Trumble (pages 290 to 293 of Exhibit MCVW-2);
(j)a further draft dated 30 April 2007 of the subject lease (pages 294 to 333 of Exhibit MCVW-2); and
(k)a further draft dated 2 May 2007 of the subject lease (pages 334 to 372 of Exhibit MCVW-2).

The second category of evidence is correspondence after the conclusion of the lease which is said to show that both parties understood the rent under the lease could never decrease (“Non-Archived Documents”). Specifically, the Non-Archived Documents are:[92]

(a)an email from [Mr Vickers-Willis] to Mr Cook of GFC dated 16 December 2013 about a request from GFC to moderate the quantum of the rent payable for ‘the Brook’ (pages 373 and 374 of Exhibit MCVW-2);
(b)an email from Scott Vickers-Willis to Messrs Cook and Shine of GFC dated 9 July 2015 referencing a request for a rent reduction (pages 375 and 376 of Exhibit MCVW-2);
(c)a letter from Mr Threlfall of GFC to me dated 26 May 2014 in which Mr Threllfall noted that a rent reduction was not possible (which appears at Exhibit MVW-1 of my affidavit sworn on 15 May 2017) (Threlfall 26 May 2014 letter);
(d)an email from Mr Cook of GFC to [Mr Vickers-Willis] dated 1 September 2016, in which Mr Cook noted that the Lease provides absolutely no ability for the rent to reduce at any time in the potential 43 years of the lease (pages 377 and 378 of Exhibit MCVW-2);
(e)GFC’s instructions to Knight Frank dated 10 February 2015 for the purpose of conducting its valuation of ‘the Brook’ on behalf of the GFC, and which arrived at an equivalent conclusion about the effect of the rent review mechanism for the premises (pages 379 to 475 of Exhibit MCVW-2).

[92]Second Vickers-Willis Affidavit, [36].

The third category of evidence is the affidavits of Mr Vickers-Willis[93] and Mr Donaldson.[94]
[93]Second Vickers-Willis Affidavit; Third Vickers-Willis Affidavit; Affidavit of Michael Charles Vickers-Willis (2 May 2018).
[94]Affidavit of Lachlan Kirwan Donaldson (9 March 2018).

Is the evidence “fresh”?

Evidence will be “fresh” where it was not previously available otherwise than because of a lack of reasonable diligence on the part of the party which now seeks to adduce it. PCCEF submits that the evidence is fresh because while it was available to its erstwhile solicitors, the evidence was not available to PCCEF because it was not retrieved by its solicitors, even after reasonable endeavours by PCCEF.[95] It is apparent that the evidence which is said to be fresh is only the first category of evidence referred to, being the Archived Documents. PCCEF submits that there was no lack of reasonable diligence on the part of PCCEF, even if there was on the part of its then solicitors.[96] The parties did not refer the Court to any authorities regarding the relevance of the distinction made by PCCEF between the diligence of PCCEF and that of its erstwhile solicitors. While the relevance of this distinction is highly doubtful, it is not necessary to resolve that issue as the evidence does, if anything, establish that there was a lack of reasonable diligence on the part of PCCEF itself. In order to ascertain the degree of diligence of PCCEF, or lack of it, it is necessary to examine the evidence it has adduced as to the conduct of the proceeding on its behalf in some detail.
[95]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [19].
[96]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [19].

In late 2016, as the dispute was beginning to crystallise and PCCEF was seeking the advice of counsel, Mr Vickers-Willis of PCCEF specifically requested that a particular post contractual email be included in the brief to counsel.[97] In that email, which was sent by Mr Brian Cook of the Defendant to Mr Vickers-Willis on 1 September 2016 (“the Cook Email”),[98] Mr Cook noted that the lease provided absolutely no ability for the rent to reduce at any time. Having been made aware of this document, the preliminary advice of both junior and senior counsel was apparently that PCCEF should commence proceedings by originating motion,[99] and by implication, it seems, no reliance would be placed on the surrounding circumstances which are now the basis of the proposed claim for rectification, except to the extent that those circumstances were relevant for construction. That advice is ostensibly summarised in the email from Grindal & Patrick to Mr Vickers-Willis of 15 February 2017,[100] though the advice itself is not before the Court.
[97]Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 478.
[98]Second Vickers-Willis Affidavit, [40], referring to Exhibit MCVW-2 at 377–8; see also exhibit MVW-1 to the Affidavit of Michael Vickers-Willis (15 May 2017).
[99]Second Vickers-Willis Affidavit, [42].
[100]See Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 496.

Once the Originating Motion and affidavit in support had been prepared by both counsel in mid-February 2017, Mr Vickers-Willis noted that the then legal advisors of PCCEF did not consider the Cook Email to be relevant.[101] This was a prudent observation for Mr Vickers-Willis to have made, given that he was concerned that what was in his view a critical piece of evidence not be overlooked. Replying that same day, Grindal & Patrick advised Mr Vickers-Willis that reference to the email had been eschewed on the advice of counsel, on the basis that “[c]ounsel want to confine the issue before the court purely to a legal interpretation question, and Cook’s email would bring a ‘factual’ element into the mix”.[102] The Court does not have before it any evidence as to whether Mr Vickers-Willis replied to that email.
[101]Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 499; see also Affidavit of Michael Charles Vickers-Willis (2 May 2018), [6].
[102]Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 498.

It is, however, apparent that neither the Originating Motion of 17 February 2017 nor the affidavit of Mr Vickers-Willis sworn 21 February 2017 referred to the Cook Email. Without more, this is a thoroughly unexceptional episode, in that the Mr Vickers-Willis apparently deferred, though perhaps reluctantly, to the advice of counsel as to litigation strategy, and the Cook Email was presumably regarded as rather unhelpful given that it was sent nearly seven years after the lease was concluded.[103] In this context, it seems rather surprising that Mr Vickers-Willis was not aware the former counsel for PCCEF were never provided with the Archived Documents as they took the view that such documents could not be relevant,[104] though this must be weighed against correspondence in early May 2017 where Grindal & Patrick relayed a request from counsel for contemporaneous documents relating to the negotiation of the lease to Mr Vickers-Willis.[105]
[103]See FAI Traders Insurance Company v Savoy Plaza Pty Ltd [1993] 2 VR 343.
[104]Affidavit of Michael Charles Vickers-Willis (2 May 2018), [6].
[105]Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 501–2.

Further, while the former legal advisors of PCCEF were preparing submissions and affidavit material in early to mid-May 2017, being a little over a fortnight before the trial on 30 May 2017, there was a flurry of correspondence in which Mr Vickers-Willis once again agitated strongly for evidence to be adduced in support of the alleged common intention that the rent payable under the Lease would not decrease during the term of the lease. In particular, Mr Vickers-Willis pressed strongly for the Non-Archived Documents to be relied upon,[106] and to include in his affidavit what is now set out in the following terms in his Second Affidavit:[107]

26.Including by reason of this commercial context, at the time the Lease was entered into, I believed that it was agreed between the parties, and that they shared a common intention, that the rent payable under the Lease could never reduce over the term of the Lease. This agreement and common intention arose out of a series of discussions between representatives of GFC and me in the period leading up to 14 February 2007 and was confirmed that day at a meeting at GFC’s offices at the stadium then known as Kardinia Park (14 February 2007 meeting)
27.The 14 February 2007 meeting was attended by myself on behalf of Pt Cook and, on behalf of GFC, by Tom White of Coulter Roache (GFC’s then solicitors), Robert Threlfall (then GFC’s General Manager of Finance) and Stuart Fox (then GFC’s Operations Manager). As the meeting occurred over ten years ago, I cannot now recall the specific words said by each party at that meeting. I do, however, recall that, at the meeting:
…
(b)in order to meet the fundamental requirements of the financial structure, it was agreed by all parties that the contemplated lease would provide for a market review every five years but that changes to the rent consequent upon the review must be such that increases would be capped at 5% and the rent could never decrease.

[106]See Second Vickers-Willis Affidavit, [46]–[52]; and the documents there referred to; see especially, Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 510–2.

[107]Second Vickers-Willis Affidavit, [26]–[27]; and see at [52].

Additionally, Mr Vickers-Willis sets out the instructions which he gave in May:[108]
[108]See Second Vickers-Willis Affidavit, [47], [49].

47.On 9 May 2017… I provided further written instructions to Grindal & Patrick by email. My email relevantly included the following:
Tom White of Gargan Roache may be prepared to support our recollection of the rent review provisions as negotiated and agreed. He may also have relevant evidence of correspondence in his files.
We believe that Gargan Roache supported our interpretation of the lease and were subsequently replaced as solicitors.

…

…
49.At or around [9 May 2017], and in addition to the above instructions that I provided to Grindal & Patrick:
(a)I further instructed Grindal & Patrick to advise on any further affidavits that should be filed on the plaintiff’s behalf by 18 May 2017; and
(b) I emphasised to them that the plaintiff’s affidavit material should address the agreement [on 14 February 2007] referred to in paragraphs 26 and 27 above [that rent payable under the Lease could never reduce over the term of the lease] and the Relevant Non-Archived Documents.

Importantly, it is clear from how the trial proceeded that reliance was not placed upon this material, nor upon the Archived Documents. Given that it is not alleged that the former legal advisors of PCCEF went off on a frolic of their own, it can be assumed that the litigation was conducted in accordance with instructions provided by Mr Vickers-Willis on behalf PCCEF, however reluctant those instructions may have been.

The essential submission of PCCEF in this respect is that as Mr Vickers-Willis reasonably believed that his solicitors had reviewed the Archived Documents, there was no lack of diligence on the part of PCCEF in failing to consider those documents. However, it cannot be accepted that Mr Vickers-Willis reasonably believed that the Archived Documents were reviewed having regard to the following facts:[109]
[109]Cf Second Vickers-Willis Affidavit, [29].

(a) Mr Vickers-Willis always believed and recalled that the commercial agreement to which the terms of the lease were to give effect included that the rent payable under the lease would not reduce during the term of the lease;[110]
[110]Second Vickers-Willis Affidavit, [25]–[26]; see also, [28]; Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 504–5.

(b) reference was not made to the Archived Documents in the brief to counsel of 22 December 2016,[111] a copy of which was requested and presumably considered by Mr Vickers-Willis,[112] nor were they discussed between Mr Vickers-Willis and either counsel or Grindal & Patrick prior to the delivery of judgment;[113]
[111]Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 485–91.
[112]Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 476.
[113]So much can be assumed from the fact that they were not considered until after judgment, see Second Vickers-Willis Affidavit, [30]–[33].

(c) it is obvious that the Archived Documents, or similar documents, would have been created during the negotiation and drafting of the lease; and

(d) if these documents were lost, destroyed or were otherwise unavailable, this would have been discussed with Mr Vickers-Willis.

Given that Mr Vickers-Willis did not reasonably believe that the Archived Documents had been considered by Grindal & Patrick, there was a lack of reasonable diligence on the part of PCCEF given that it failed to take any steps to obtain those documents or ensure that they were considered.

Indeed, on 9 May 2017, shortly before swearing his affidavit of 15 May 2017 that was relied upon at trial, Mr Vickers-Willis was requested by Grindal & Patrick to identify and locate material, including “contemporaneous evidence from the time that the lease was entered into”.[114] Not only was his response rather cursory,[115] the fact that this request was made cannot easily be reconciled with Mr Vickers-Willis’ evidence that he proceeded on the basis that Grindal & Patrick “had reviewed and considered the Archived Files”.[116]
[114]See Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 508.
[115]Mr Vickers-Willis apparently did no more than asking Rebecca Miller to “endeavour to locate any relevant correspondence in the files” (see Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 508). See also his email response to Fiona Brophy Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 501–2.
[116]Second Vickers-Willis Affidavit, [29].

As in CC Containers Pty Ltd v Lee (No 5),[117] the further evidence which PCCEF now seeks to adduce was always available and could likely have been reasonably discoverable by PCCEF before or during the course of the trial. In this way, the present case is disanalogous to Commonwealth Bank of Australia v Quade,[118] where “the unavailability of the evidence at the trial resulted from a significant failure by the successful party to comply with an order for the discovery of relevant documents in his possession or under his control”,[119] and it is quite clear that the evidence sought to be adduced is not fresh—particularly in the case of the non-archived documents.

Is it reasonably clear that the fresh evidence would have resulted in the success of the PCCEF’s claim?

[117][2013] VSC 619, [30].

[118](1991) 178 CLR 134.

[119]Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 142.

PCCEF submits that the justice of the case requires the grant of leave to re-open because the import of the fresh evidence is that it is reasonably clear that rectification should have been pursued as an alternative claim, and additionally that the documents would have provided a fuller commercial context in which the lease could be construed.[120] PCCEF submits that the degree of relevance and the probative value of the further evidence sought to be adduced is exemplified by the letter from Coulter Roache on behalf of the Defendant to Donaldson Trumble on behalf of PCCEF dated 15 February 2007, which refers to a meeting on 14 February 2007 and agreement that “[t]he market review of rental will be conducted every five years on the basis that the rental will not decrease from the previous years (sic) rent”.[121] Some emphasis is also placed by PCCEF on the attendance of Mr Robert Threlfall, the then General Manager of Finance of the Defendant, at this meeting, given that he was one of the signatories of the relevant lease.
[120]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [20]; Transcript (5 May 2018), 11.
[121]Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 164–5; see also Second Vickers-Willis Affidavit, [27(b)].

For the reasons which follow, which apply mutatis mutandis to whether the justice of the case requires the grant of leave to reopen under the “inadvertent error” ground, there is nothing in the proposed new evidence which establishes that it is reasonably clear that PCCEF would have succeeded had the evidence been admitted, nor does the proposed evidence—either by itself or in combination with other considerations—establish the ultimate contention of PCCEF in respect of this application that the justice of the case requires the grant of leave to re-open. Of course, while the test for leave to reopen on the basis of fresh evidence requires consideration only of whether it is reasonably clear that the fresh evidence would result in the Court accepting the opposite conclusion, in the present context it is helpful to consider the effect of all the evidence, including that which it does not submits is fresh,[122] which PCCEF now seeks to adduce.
[122]See Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [17], [19].

The affidavit material does not establish with any certainty the contentions made by PCCEF. There are significant issues of admissibility in respect of Mr Vickers-Willis’ affidavit of 7 December 2017,[123] particularly in relation to paragraphs 24–27 where his evidence is impermissibly conclusionary. The affidavit of Mr Vickers-Willis of 9 March 2018 only supports findings about what Mr Vickers-Willis intended, and does not come close to establishing a common intention,[124] and the same is true of the affidavit of Mr Donaldson.[125] Given the significant deficiencies in the affidavit material in this respect, the documentary evidence must be quite clear before it can be accepted that it is reasonably clear that the opposite conclusion would be reached by the Court upon the consideration of the new evidence.
[123]See Defendant’s Outline of Submissions in Reply (23 March 2018), [17(a)].
[124]See Third Affidavit of Vickers-Willis.
[125]Affidavit of Lachlan Kirwan Donaldson (9 March 2018).

The relevant Non-Archived Documents,[126] together with the Archived Documents,[127] do provide some support for the contention that there was at some stage a common intention that the rent payable under the Lease would not decrease during the term of the lease, which is an intention contrary to the construction contended for by the Defendant and ultimately accepted by this Court. But they can only offer support. As is apparent from cases such Perpetual v Myer,[128] while it is one thing to establish that parties had a certain intention at a particular point in an ongoing negotiation, it is quite another to establish that this common intention was continuing at the time the lease was concluded, especially where both parties are legally represented and the lease did not reflect that understanding. Accordingly, having considered these documents I am satisfied that they do not, even combined with the recollections Mr Vickers-Willis and Mr Donaldson, establish that it is reasonably clear that the common intention continued until the conclusion of the lease. Indeed, I think it is more than plausible that, upon hearing a rectification claim and examining the full body of evidence rather than only the select documents currently before this Court, a Court would conclude that there was no common intention when the lease was executed on 1 October 2009.
[126]As described above, [30].
[127]As described above, [29].
[128][2018] VSC 2, see especially [21]–[56].

Finally, PCCEF also notes that the clauses of the Lease referred to in paragraph 9 of the Second Vickers-Willis Affidavit—being clauses which would support the construction contended for by PCCEF—were not relevantly brought to the Court’s attention at the trial.[129] In this respect, PCCEF notes that:[130]
[129]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [15].
[130]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [15]; Transcript (3 May 2018), 26–7; these portions of the lease were present in both the actual lease and the agreement for lease which was considered by the Court in Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313.

(a) paragraph 5 of Schedule 2 of the Lease contemplates the making of an adjusting payment by the Defendant to PCCEF following a market rent review, the premise for which is that the rent is to increase, while there is no clause in the Lease requiring PCCEF to pay any “overpayment” of rent to the Defendant;[131] and

(b) clause 3.1(b) of the Lease expressly provides that “the Tenant covenants to pay the Rent without any abatement, deduction or right of set-off unless it is specifically allowed under the lease”.[132]

These are arguments which could have been raised at trial. They were not—at least not in the terms in which they are now put—and the comments of Mason CJ in Autodesk Inc v Dyason (No 2) to which reference has been made are apposite in this respect.[133] Merely identifying arguments that were not run at trial does not come close to the “truly exceptional circumstances” which would be required to persuade this Court to permit PCCEF to reopen its case, assuming that the Court had power to do so—which it does not.

[131]Cf. Plaintiff’s Outline of Submissions (17 May 2017), [21], which referred to paragraph 5 of schedule 2 to the lease (albeit in a different context) which is extracted in Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313, [19].

[132]But see Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313, [5] where clause 3(b) is set out.

[133]176 CLR 300 at 303, extracted above, [15].

Inadvertent error

PCCEF submits that the present case falls into the “the Nweiser intentional but mistaken category” identified by the Victorian Court of Appeal in Ezra Abrahams Pty Ltd v Milburn,[134] with the effect that leave to reopen the case ought to be granted. The alleged inadvertent error is identified as the failing by the former legal advisors of PCCEF to plead rectification and “to adduce communications that showed that at the time of entering into the lease the parties commonly intended that the rent payable under the lease could never decrease”.[135] It is said by PCCEF that while this was a deliberate decision of counsel in the sense of being intentional, it was not a deliberate forensic decision because the decision was not made in the context of all the relevant facts.[136] Specifically, it is submitted that the view of counsel that pre-lease and post-lease communications were irrelevant was incorrect, and that reliance on this view caused the former legal advisors of PCCEF to fail to adequately explore whether pre-lease and post-lease communications evidenced a common intention that the rent payable under the lease could never decrease during the term of the lease.[137]
[134]Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355, [50], extracted above, [24].
[135]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [3].
[136]Transcript (3 May 2018), 7–8, 11.
[137]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [3].

Before turning to apply the principles set out in Nweiser,[138] PCCEF sought to analogise the alleged inadvertent error in the present case with that in Nweiser because,[139] it is said, in both cases counsel’s errant understanding of the law resulted in sub-optimal decisions as to the conduct of the proceeding which could be remedied by reopening the case.[140] However, the critical difference between the two cases is that in Nweiser, the application to re-open the appellant’s case was made prior to the other party commencing its case, rather than after judgment had been delivered and final Orders made.[141] What is more, in Nweiser, counsel explained the error which was the basis of the application for leave to re-open to the Court,[142] and further, the Court found that “the respondent would not have been prejudiced in any way by the grant of the application”.[143] Thus while Nweiser may be a source of relevant principles, its facts are entirely distinguishable.
[138]Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 475–6.
[139](1992) 28 NSWLR 471 (“Nweiser”).
[140]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [10].
[141]Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; see also CC Containers Pty Ltd v Lee (No 5) [2013] VSC 619, [31].
[142]Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 474.
[143]Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 475.

Against the background of the conduct of the litigation by Grindal & Patrick to which reference has been made,[144] PCCEF submits that the relevance of the pre and post contractual communications should have been obvious to its then legal advisors upon the provision of the Cook Email which suggested that the common intention of the parties was otherwise than as manifested,[145] especially in light of the recollection of Mr Vickers-Willis as to the common intention of the parties, which was conveyed to the then solicitors for PCCEF.[146] Indeed, even after counsel for PCCEF requested on 9 May 2017 evidence of communications which were contemporaneous with the negotiation and drafting of the lease,[147] Grindal & Patrick apparently still did not retrieve the file it held in its archives.
[144]See above, [33]–[37].
[145]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [4].
[146]See e.g. Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 504–5.
[147]See Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 501–2.

It is plain that the Archived Documents ought to have been reviewed by Grindal & Patrick, at this stage, if not earlier. This apparent failure is said to be aggravated by the fact that the solicitor involved in taking instructions in the proceeding was also involved in negotiating and drafting the lease. After all, any claim in rectification, it is submitted, would imply a significant failure by that solicitor in his role in negotiating and drafting the subject lease.[148] However, having regard to the findings of this Court as to the import of those documents,[149] while PCCEF may have established that a mistake was made by its then legal advisors, it has not established that this caused an error in how the proceedings were conducted. It also bears noting that the affidavit of Mr Donaldson, a former solicitor for PCCEF, does not address what he and his colleagues did, or did not, consider or “explore” nor does it explain the “belief” relevantly held by counsel.[150] Trial counsel for PCCEF, alleged to have made the relevant error, has provided no explanation or acknowledgment of any error on his part.[151]
[148]See Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [26].
[149]See above, [44].
[150]See Affidavit of Lachlan Kirwan Donaldson (9 March 2018).
[151]Cf Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355, [42]. Neither has Senior Counsel involved in the decision to commence the proceeding on an Originating Motion on a construction question only so as to avoid any potential factual dispute.

While it would have been prudent for the then legal advisors of PCCEF to examine both the Archived Documents and the Non-Archived Documents, PCCEF has not established that the decision not to plead rectification was incorrect or in error. It was open to counsel to reconsider—in light of their client’s firm instructions—whether the case ought to proceed as set out in the Originating Motion or whether it ought to be converted to a writ and statement of claim. Yet they did not take that course and that was prima facie an acceptable forensic strategy of counsel to which PCCEF deferred, albeit reluctantly. It bears recalling that the mere fact that a particular approach was unsuccessful does not entail that it was unreasonable or even sub-optimal. Decisions can only be made and advice can only be given on the basis of information as it is available. Pursuing additional heads of claim requires additional expenditure and increases the potential quantum of costs for which a party may be liable. It may also result in material being adduced which is either directly or indirectly prejudicial to another head of claim. Indeed, the credibility of witnesses is another factor to which counsel must have regard.

Further, while decisions of this Court are made in accordance with stare decisis and the doctrine of precedent,[152] this does not entail that they may be easily predicted.[153] What is more, it bears recalling that PCCEF maintains in the Notice of Appeal that the construction of the lease adopted by this Court in Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313 is wrong, and by implication that the construction advanced by their counsel was correct.[154] In this context, it is appropriate to note that to the extent that aspersions have been cast on Grindal & Patrick and the former counsel for PCCEF, these aspersions have not been justified. For these reasons, while it may be that its then advisors did not consider all of the available evidence, PCCEF has failed to establish that the litigation strategy ultimately adopted was in error as a result.
[152]As to the distinction between stare decisis and the doctrine of precedent, see M J Beazley, P T Vout and S E Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths, 2014) 28 et seq.
[153]See C Croft, “Around the Nation: Victoria: A Lease or a Licence: How Vagueness Occasions Substantive Unfairness” (2018) 92 Australian Law Journal [Part 3].
[154]Application for Leave to Appeal (24 November 2017).

In any event, while a forensic error by a practitioner is significant, and may result in injustice to a party, such an error is far from “truly exceptional” in the sense required for a final judgment of this Court to be revisited by this Court, even if there were power to do so. The reliance by PCCEF on an alleged mistake on the part of its former solicitors shows an underestimation of the fundamental role that finality must play in civil litigation.

Prejudice to GFC

In considering the overarching question of whether the justice of the case favours the grant of leave to re-open, regard must be had to the prejudice to the other party, in this case the Defendant. PCCEF says that the prejudice to the Defendant is minimal in that wasted costs can be remedied by a costs order, that there is no suggestion that the potential witnesses for the Defendant are now unable give evidence, that the Defendant has not acted in reliance on the judgment in any significant sense, and that steps have been taken to deposit the amount of past rent which has been overpaid in a joint trust account.[155] Yet this overlooks the significant burden which would be imposed upon the Defendant if it was forced to once again prepare for and litigate a trial. While costs orders could ameliorate the financial detriment to the Defendant, the litigation would continue to be a significant managerial burden.
[155]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [22]–[25].

PCCEF also makes reference to the fact that the relief obtained was a declaration, rather than an award of damages, with the effect that the Defendant did not obtain a “vested right in a final judgment”.[156] While this is true, I do not accept, for the reasons set out in paragraphs 17 to 22, the non sequitur which the Defendant suggests follows, specifically that the present case is a “different category of case because of the declaratory nature of the relief sought, and the way in which it progressed”.[157] In the same way, the speed at which this matter was brought on for hearing is not of any significance to the present application.[158]
[156]Plaintiff’s Amended Submissions on Application for Leave to Re-Open (9 March 2018), [24]; Transcript (3 May 2018).
[157]Transcript (3 May 2018), 13.
[158]See Transcript, (3 May 2018), 32; note also in this respect that PCCEF sought an early trial date, see Transcript (31 March 2017), 4–5; Exhibit MCVW-2 to the Second Vickers-Willis Affidavit at 496.

Further, in considering the “justice of the case”, regard must be had to alternative avenues of redress which are open to PCCEF. If, as PCCEF submits, the injustice arises out of the failure by its former advisors to appropriately gather and consider documents which would found a rectification claim, as well as fail to correctly identify available causes of action, PCCEF may be able to obtain relief through action against those advisors.[159]
[159]See Transcript (3 May 2018), 12–13.

For the preceding reasons, this Court lacks jurisdiction to grant PCCEF leave to re-open its case. Were this not the case, the Court would nonetheless dismiss the application, principally because:

(a) the application is made after judgment and PCCEF has not established “truly exceptional circumstances”;

(b) the evidence does not make it reasonably clear that PCCEF’s proposed case would succeed;

(c) the evidence sought to be adduced was readily available at trial;

(d) the evidence does not establish anything more than a significant possibility that the approach taken by the former legal advisors of PCCEF was sub-optimal; and

(e) the grant of leave would impose significant prejudice upon the Defendant.

Special costs Order

The context in which the special costs Order is sought by the Defendant in respect of the costs of its summons is set out above at paragraphs 2–9. Critically, paragraph 4 of the summons of 6 July 2017 remains unresolved,[160] and it is accordingly for this Court to determine the costs of that summons.
[160]See above, [5].

Section 24 of the Supreme Court Act 1986 gives the Court broad discretion to award costs, including on an indemnity basis.[161] The usual order as to costs is an award to the successful party on a standard basis.[162] Some of the circumstances in which a special costs order may be justified include where:[163]
[161]Supreme Court (General Civil Procedure) Rules 2015, r 63.28.
[162]Supreme Court (General Civil Procedure) Rules 2015, r 63.31; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [541].
[163]Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233–4; J-Corp Pty Ltd v Australian Builders Labourers’ Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 at 303; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [542]–[546].

(a) there is evidence of particular misconduct that causes loss of time to the Court and to other parties;

(b) the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law; or

(c) there is undue prolongation of a case by groundless contentions.

The Court may also impose sanctions under Part 2.4 of the CPA where there has been a breach of the overarching obligations, which can include an order for payment of costs.[164] Recourse to the CPA has been said to provide “a further separate and independent basis for awarding indemnity costs”,[165] and the Victorian Court of Appeal has stated that “judicial officers must actively hold the parties to account” for contraventions of the overarching obligations.[166] More generally, in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd,[167] the Court of Appeal referred with apparent approval to the following summarisation at first instance of the effect of the CPA in the context of applications for special costs Orders:[168]
[164]Civil Procedure Act 2010 s 29(1)(a).
[165]MacFellis Pty Ltd v Bank of Queensland Ltd [2015] VSC 20, [17]–[19]; Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 at 311 [27], 317 [56]; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [553]–[554].
[166]Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 at 311 [26] affirming Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399.
[167]Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [550].
[168]Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399, [19].

Also relevant to the question of costs are the provisions of the Civil Procedure Act 2010. In the present circumstances, the following provisions and aspects of those provisions are particularly relevant:

(1)among other things, the object of the Civil Procedure Act, is to reform and modernise the practice, procedure and processes relating to civil proceedings in the Supreme Court, and other courts. Importantly, provision is made for an overarching purpose in relation to the conduct of civil proceedings which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in those proceedings;[169]
(2)in the exercise of its powers, the Court must seek to give effect to the overarching purpose, whether these powers arise from the procedural rules or practices of the Court or otherwise;[170]
(3)an overarching obligation is cast upon parties and legal practitioners representing or acting on behalf of a party, whether they be barristers or solicitors, to act honestly at all times in relation to a civil proceeding and not to make any claim or make a response to any claim in a civil proceeding that is frivolous, vexatious, an abuse of process or does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, have a proper basis;[171]
(4)an overarching obligation applies to the persons referred to in the preceding paragraph to disclose to each party the existence of all documents that are, or have been, in that person’s possession, custody or control of which the person is aware and which the person considers, or ought reasonably consider, are critical to the resolution of dispute. Disclosure must occur at the earliest reasonable time after the person becomes aware of the existence of the document or at such other time as the Court may direct. These provisions do not apply to any document which is protected from disclosure on the grounds that privilege which has not been expressly or impliedly waived or under any other Act (including any Commonwealth Act) or other law;[172] and
(5)in exercising any power in relation to a civil proceeding, including the exercise of the discretion as to costs, the Court may take into account any contravention of the overarching obligations.[173]

[169]See Civil Procedure Act 2010, s 1.

[170]See Civil Procedure Act 2010, s 8.

[171]See Civil Procedure Act 2010, ss 10, 17 and 18.

[172]See Civil Procedure Act 2010, s 26.

[173]See Civil Procedure Act 2010, s 28.

PCCEF submits that its response to the 6 July 2017 Summons was appropriate, particularly having regard to the following:[174]
[174]Plaintiff’s Submissions on Application for Costs (23 March 2018), [4]; see also Transcript (3 May 2018), 28 et seq.

(a)The parties were in highly unique circumstances upon discovering that Pt Cook Community Entertainment Facility Pty Ltd (ACN 123 118 187) (Pt Cook) was deregistered; neither party identified the error or sought to rectify it before judgment in this proceeding;
(b)Upon finding itself in these unique circumstances, [the Defendant] filed the Summons prematurely, seeking orders and declarations it ultimately did not pursue. The costs associated with the Summons could have been avoided if [the Defendant] had awaited the outcome of the reinstatement proceeding it commenced;
(c)[The Defendant] did not agitate for the orders sought in the Summons at the 7 July 2017 mention hearing before Justice Croft, but sought to adjourn the Summons and subsequently commenced separate reinstatement proceedings while the Summons was held in abeyance;
(d)As Justice Croft and Associate Justice Randall appeared to recognise, PCCEF’s position in seeking to intervene and then oppose the reinstatement of Pt Cook was arguable and, according to Randall AsJ, of assistance to the Court;
(e)PCCEF was seeking to act responsibly in putting an alternative pathway forward, including by issuing but not serving the new proceeding 00181 (which included a rectification claim not raised in this proceeding before judgment), in order to circumvent:
(i) an appeal of Justice Croft’s orders dated 9 June 2017; and
(ii) the re-opening application,
in this proceeding;
(f)In any case, costs orders (on the standard basis at both first instance and on appeal) have already been made in respect of PCCEF’s opposition to [the Defendant’s] reinstatement application where PCCEF relevantly prosecuted the nullity point;
(g)Once Pt Cook was reinstated and Justice Sifris’ reasons were delivered for dismissing the reinstatement appeal, PCCEF did not delay in consenting to the appropriate orders (as opposed to the orders and declarations sought in the Summons).

The Defendant submits that PCCEF was put on notice by the Defendant’s letter of 5 July 2017[175] of PCCEF’s alleged obligation—under the CPA—to accede to the making of the Orders sought in the Defendant’s summons of 6 July 2017.[176] Further, it is said that the Defendant established in that letter that it was untenable for PCCEF to contend that it and Pt Cook were distinct entities in the sense that it had not actually been PCCEF but Pt Cook who conducted the litigation. In this respect, the letter of 5 July 2017 provided:[177]
[175]Exhibit RB-3 to the Affidavit of Reid Bettridge (6 July 2017). The letter was sent by email.
[176]Defendant’s Outline of Submissions (9 March 2018), [16].
[177]Exhibit RB-3 to the Affidavit of Reid Bettridge (6 July 2017).

The following matters are relevant to the circumstances in which the relevant error was made and the appropriate course now that it has been identified.
1.Including as the named plaintiff was deregistered in August 2010, it is apparent that the Proceeding was at all times prosecuted by PCCEF (the landlord of the Property at all relevant times) and PCCEF was the architect of the claim.
2.Grindal & Patrick represented, and proceeded on the basis, that they were acting on behalf of PCCEF (including prior to the commencement of the Proceeding). In this regard, we draw your attention to the letter from Grindal & Patrick dated 17 November 2016 (exhibit “LKD-3” to the affidavit of Mr Donaldson sworn 21 February 2017), which was sent in response to a letter from our office to PCCEF (not to the named plaintiff) dated 10 November 2016 (exhibit “LKD-2” to the affidavit of Mr Donaldson sworn 21 February 2017).
3.Mr Michael Vickers Willis, from whom Grindal & Patrick received instructions, is a director of PCCEF and the “controlling mind” of PCCEF.
4.In his affidavit sworn 15 May 2017 and filed in the Proceeding, Mr Vickers-Willis made various references to “the plaintiff” (including in respect of decisions said to have been made by the “plaintiff” in June 2014). In circumstances where the named plaintiff had been deregistered since August 2010, these references were plainly intended to be references to PCCEF.

The affidavit of Mr Donaldson sworn 21 February 2017 exhibited (as “LKD-1”) a copy of a lease between the named plaintiff and our client. While it is now apparent that the lease that was exhibited as “LKD-1” is not the applicable lease, the correct lease (designating PCCEF as the landlord and executed by PCCEF in that capacity) is in identical terms. For the avoidance of doubt, a copy of that lease is attached. It is noteworthy that Mr Vickers-Willis signed both leases.

It is difficult to reconcile the comments of Senior Counsel for PCCEF at the directions hearing on 7 July 2017, with PCCEF’s letter of 22 November 2017, the relevant portions of which are respectively set out above at paragraphs 7 and 8 above.[178] Without casting any aspersions on Senior Counsel for PCCEF—who may well have believed the position to be as he indicated—I think it is fair to conclude that the Court was misled. That being said, it was incumbent on both parties and their practitioners to ensure that the Court was informed of the true position as soon as it was established.[179]
[178]See also Transcript (3 May 2018), 3–4.
[179]See Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 19.1–3; Legal Profession Uniform Conduct (Barristers) Rules 2015, r 25.

It is plain from the foregoing that insofar as PCCEF resisted the relief sought in the Defendant’s summons of 6 July 2017 on the basis that Pt Cook and PCCEF were relevantly distinct, PCCEF breached its obligations under the CPA. Indeed, the delay between the Defendant’s letter of 5 July 2017 and the acquiescence to the contention of that letter by PCCEF on 22 November 2017 was also a breach. This conduct also amounts to conduct which justifies the grant of costs on an indemnity basis, as it caused the undue prolongation of a case by the maintenance of groundless contentions.[180] However, these findings have two caveats:

(a) First, PCCEF did not breach its obligations insofar as it refused to consent to the relief sought by the Defendant while it took a reasonable period to establish the true position. Of course, such a period would have been very short, given the gravity of the situation and the fact that Mr Vickers-Willis was a controlling mind of both Pt Cook and PCCEF, but advice and so forth may have needed to have been obtained. However, having regard to the totality of the circumstances, the nature of PCCEF’s subsequent conduct, and the very short period this would cover, it is not appropriate to discount the special costs Order for this period.

(b) Second, this conclusion is distinct from the question of whether the maintenance of the contention that the proceeding was a nullity was a breach of the CPA.

[180]See above, [58].

Once it is accepted that it was PCCEF which was conducting the proceeding from the very beginning, and the reference to the deregistered Pt Cook was merely an error, which is the position established by the 22 November 2017 letter to which reference has been made,[181] it becomes apparent that the reliance by PCCEF on the nullity point was entirely unjustifiable. The error as to the name of the Plaintiff was clearly within the scope of the “slip” rule and it was unnecessary for Pt Cook to be reinstated before appropriate Orders rectifying the situation could be made by consent.[182] The maintenance of a submission which is purely and entirely a technicality offends the overarching purpose of the CPA, being the facilitation of the “just, efficient, timely and cost-effective resolution of the real issues in dispute”.[183] In the circumstances, it is a point which PCCEF was obliged not to take, and indeed, PCCEF was obliged to ensure that the slip was remedied expeditiously. It is plain that as PCCEF was unsatisfied with the judgment it obtained, it sought to prevent that judgment from being effective by means of a strategy which had no relation to the real issues in dispute between the parties. Although PCCEF was correct to note at the directions hearing on 7 July 2017 that if the proceeding was a nullity, the CPA would not apply, it is now clear—and by virtue of the nature of the common law, it always has been clear[184]—that it is not a nullity and that the CPA does apply.
[181]Extracted above, [8].
[182]Cf. Transcript (3 May 2018), 29–30.
[183]Civil Procedure Act 2010 s 7 (emphasis added).
[184]See Australian Investment & Development Pty Ltd v Commissioner of State Revenue [2018] VSC 154, [32] and the authorities there cited.

It is simply not to the point that the circumstances before the Court on 7 July 2017 were highly unusual, that Pt Cook had not yet been reinstated, or that the summons might be said to have been premature.[185] It is of no relevance that Randall AsJ was assisted by the submissions of PCCEF in determining the application to reinstate Pt Cook.[186] Indeed, neither is it of any import that there may have been interesting and arguable legal points before Randall AsJ and Sifris J in the application to reinstate Pt Cook and the appeal from that reinstatement. The critical consideration—once it is established that PCCEF was controlling the litigation from the beginning—is that PCCEF was prosecuting a technical legal point which was available only because of its own error and which had no relationship to the merits of its case, in the hope of gaining a collateral advantage in the proceeding. Such a course is mischievous to say the least, and invites the question—when exactly did the error in relation to the name of the Plaintiff become apparent, and further, when did that error become apparent to an officer of this Court? In the circumstances, it is unnecessary to consider these questions. Assuming that the mistake was discovered shortly before it was brought to the attention of the Court, PCCEF was nonetheless obliged by the CPA to consent to Orders in the form or similar to the form sought by the Defendant in its summons of 6 July 2017.
[185]Plaintiff’s Submissions on Application for Costs (23 March 2018), [6]–[12].
[186]Plaintiff’s Submissions on Application for Costs (23 March 2018), [13] referring to Re Geelong Football Club Ltd (ACN 005 150 818) [2017] VSC 633, [25].

While the Defendant has not identified any particular overarching obligation which it is said that PCCEF has breached, this does not prevent the Court from relying on its duty to give effect to the overarching purpose in exercising its discretion as to costs, and consequently making a special costs Order.

Accordingly, I accept that the conduct of PCCEF:[187]
[187]Defendant’s Outline of Submissions (9 March 2018), [19].

(a) has been highly regrettable;

(b) has caused material delay and resulted in the incurring of significant costs and the wasting of Court time and resources; and

(c) necessitated the filing of the Defendant’s summons and should be the subject of an appropriate indemnity costs order or equivalent special costs Order under the CPA, specifically that PCCEF pay the costs of and incidental to the Defendant’s summons on an indemnity basis.

Costs of the Plaintiff’s Application for Leave to Re-Open

The parties have not made submissions on the costs of PCCEF’s application for leave to re-open. However, I am of the preliminary view that the application for leave to re-open was brought by PCCEF in disregard of clearly established law,[188] and consequently that the Defendant ought to have its costs of and incidental to PCCEF’s summons paid on an indemnity basis. In this respect, my preliminary view is that:
[188]See Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233–4; J-Corp Pty Ltd v Australian Builders Labourers’ Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 at 303; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [542]–[546].

(a) it is clear from the authorities to which reference has been made that this Court would only have power to revisit its own Orders if that power was conferred by statute;

(b) the CPA does not expressly confer such a power, and the argument that it does so by implication is very weak;

(c) no other suggested statutory basis for the power of this Court to revisit its own Orders was suggested; and

(d) the circumstances identified by PCCEF in its application fell well short of “truly exceptional circumstances”.

Conclusion

For the preceding reasons, the summons of PCCEF must be dismissed as this Court lacks jurisdiction to grant the relief sought. If this Court did have jurisdiction to grant leave to reopen the case, that leave would be refused because PCCEF has not established any “truly exceptional circumstances”. The Defendant is entitled to the costs of and incidental to its summons of 6 July 2017 on an indemnity basis, and my preliminary view is that the same basis ought to apply to the Defendant’s costs in respect of PCCEF’s summons.

Parties are to bring in Orders to give effect to these reasons. I otherwise reserve the question of costs with respect to the application for leave to reopen and will hear the parties further on this issue.

[2018] VSC 258

23 May 2018