Perre v Apand

Case [2004] FCA 1220

FEDERAL COURT OF AUSTRALIA

Perre v Apand [2004] FCA 1220

Federal Court of Australia Act 1976 (Cth)
Enforcement of Judgments Act 1991 (SA)

Federal Court Rules

Perre v Apand Pty Ltd [2004] FCA 881
Bailey v Marinoff (1971) 125 CLR 529
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1992) 109 ALR 137
TJM Products Pty Ltd v A & P Tyres Pty Ltd (1987) 17 FCR 390
R v Bow Street Magistrate; Ex parte Pinochet (No 2) [2000] 1 AC 119
Applicant NACT of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 316
WATI v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207
Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 1020
Tonkin v Johnson [1999] 2 Qd R 318
Sparnon v Apand Pty Ltd [1996] FCA 1139
Perre v Apand Pty Ltd [2004] FCA 1116

FRANK PERRE & ORS v APAND PTY LTD & ORS
SG 28 OF 1994

SELWAY J
17 SEPTEMBER 2004
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

 SG 28 OF 1994

BETWEEN:

FRANK PERRE, CATERINA PERRE, PASQUALE PERRE
MARY PERRE, GUISEPPE DOMENICO PERRE,
MARIA PERRE, JIM PERRE, FRANCES PERRE,
WARRUGA FARMS PTY LTD, PERRE’S VINEYARDS PTY LTD, GRACE PERRE
FIRST TO ELEVENTH APPLICANTS

AND:

RANGARA PTY LTD,
FRANCESCO PERRE, MARIA PERRE
TWELFTH TO FOURTEEN APPLICANTS

AND:

APAND PTY LTD
FIRST RESPONDENT

AND

MINISTER FOR PRIMARY INDUSTRIES AND THE STATE OF SOUTH AUSTRALIA
SECOND AND THIRD RESPONDENT

AND:

RISU NOMINEES PTY LTD, RICHARD DUNSTONE TOWNSEND, JOHN ANDREW MORCOMBE, JOHN SHEAHAN AS TRUSTEE IN BANKRUPTCY FOR THE BANKRUPT ESTATE OF LEO JOHN REYNOLDS
CROSS RESPONDENTS

AND:

RISU NOMINEES PTY LTD, RICHARD DUNSTONE TOWNSEND, JOHN ANDREW MORCOMBE, JOHN SHEAHAN AS TRUSTEE IN BANKRUPTCY FOR THE BANKRUPT ESTATE OF LEO JOHN REYNOLDS
CROSS CLAIMANTS

AND:

FRANK PERRE, CATERINA PERRE, PASQUALE PERRE, MARY PERRE, GUISEPPE DOMENICO PERRE, MARIA PERRE, JIM PERRE, FRANCES PERRE, WARRUGA FARMS PTY LTD, PERRE’S VINEYARDS PTY LTD, GRACE PERRE
FIRST TO ELEVENTH CROSS-RESPONDENTS

JUDGE:

SELWAY J

DATE OF ORDER:

17 SEPTEMBER 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1Leave be granted to the Minister for Primary Industries and State of South Australia to issue a warrant against the first to eleventh and the thirteenth and fourteenth applicants in terms of the warrant annexed to the affidavit of David Ray Ades filed herein on 1 June 2004, such leave to be conditional upon the warrant not being issued until after the 30th day of November, 2004.

2The Notice of Motion dated 1 June 2004 filed by the Minister for Primary Industries and State of South Australia is adjourned to a date to be advised for further submissions as to what costs orders (if any) should be made in relation to that Notice of Motion.

3The Notice of Motion dated 12 August 2004 filed by the first to eleventh applicants is adjourned to a…

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AGLC
Perre v Apand [2004] FCA 1220
Case
[2004] FCA 1220
Decision Date

CaseChat Overview and Summary

In the case of Perre v Apand, the primary dispute involved the enforceability of certain orders made in the Federal Court of Australia. The applicants, Risu and Townsend & Reynolds, sought to have specific orders set aside due to a mutual mistake of fact regarding the validity of their practising certificates. The Federal Court examined the legality and appropriateness of setting aside the orders under rule 7(2)(f) of the Federal Court Rules, which allows for such action if the party in whose favour the order was made consents. The court had to decide whether the mutual mistake and the consent of the involved parties constituted exceptional circumstances warranting the setting aside of the orders. Additionally, the court had to consider the potential impact on third parties and the appropriateness of reopening the orders.

The court held that it had the discretion to set aside the orders under rule 7(2)(f) given the consent of Risu and Townsend & Reynolds. However, the court also noted that this discretion should only be exercised in exceptional circumstances, balancing the finality of litigation with the circumstances of the case. The court found that the mutual mistake and the agreement of the parties were indeed exceptional circumstances. The court further deliberated on the potential impact on third parties, particularly the State of South Australia, and concluded that the proposed variation of orders would not adversely affect the State’s interests. The court emphasized the need to reconsider the consent orders in light of the mutual mistake and the broader context of the consent agreements.

The court granted leave for the Minister for Primary Industries and the State of South Australia to issue a warrant against certain applicants, subject to conditions. It adjourned the Notice of Motion filed by the Minister and the applicants to allow for further submissions regarding costs and the appropriate orders. The court's decision underscored the importance of mutual consent and exceptional circumstances in the exercise of discretion to set aside court orders.

The final orders included conditional leave for the issue of a warrant against certain applicants, with the warrant not to be issued until after a specified date. The court also adjourned the Notice of Motion filed by the Minister and the applicants for further submissions on costs and the appropriate orders. This approach aimed to ensure that the interests of all parties, including third parties, were adequately considered in the context of the mutual mistake and consent to set aside the orders.

Orders

Orders of the court

1 Leave be granted to the Minister for Primary Industries and State of South Australia to issue a warrant against the first to eleventh and the thirteenth and fourteenth applicants in terms of the warrant annexed to the affidavit of David Ray Ades filed herein on 1 June 2004, such leave to be conditional upon the warrant not being issued until after the 30th day of November, 2004.

2 The Notice of Motion dated 1 June 2004 filed by the Minister for Primary Industries and State of South Australia is adjourned to a date to be advised for further submissions as to what costs orders (if any) should be made in relation to that Notice of Motion.

3 The Notice of Motion dated 12 August 2004 filed by the first to eleventh applicants is adjourned to a date to be advised for further submissions as to what order or orders should be made in light of these reasons.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SELWAY J
Whatever the common law position, O 35 r 7(2) of the Federal Court Rules provides:7(2)[Discretion to vary judgment] The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where: (a)the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order; (b) the order was obtained by fraud; (c) the order is interlocutory; (d) the order is an injunction or for the appointment of a receiver; (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order was made consents. In this case two persons (Risu and Townsend & Reynolds) in whose favour the orders were made, not only consent to the orders being set aside, but ask that they be set aside. Consequently I have the power under O 35 r 7(2)(f) of the Federal Court Rules to set aside the orders already made, at least insofar as those orders relate to Risu and to Townsend & Reynolds. This is subject to at least three qualifications:(a)It may be that the appropriate procedure to set aside a sealed final order pursuant to O 35 r 7(2) is to institute a new proceeding for that purpose. If so, then the relevant Notice of Motion could be treated as a fresh proceeding for this purpose, although in the circumstances of this case that would not seem to be necessary: see Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 1020 at [13].(b)Even if the party affected consents to the order being set aside, the order should only be set aside where it is just and appropriate to do so by reason of the ‘exceptional circumstances of the case’ (see De L at 215). This is the necessary consequence of the public interest in the finality of litigation. In this case those exceptional circumstances include the following:a. The parties would seem to have proceeded on a mutual mistake of fact, namely that Risu and Townsend & Reynolds each held a practicing certificate;b. The parties are agreed as to that mutual mistake;c. If that issue had been raised before the orders were made then the orders would not have been made. Whether other orders would have been made in favour of different parties cannot presently be determined;d. If the orders are not set aside then (assuming the orders to be final orders) the Perres have applied for an extension of time to appeal from the above orders. The basis of the appeal would presumably be the ‘fresh evidence’ that Risu and Townsend & Reynolds did not hold a practising certificate. In the circumstances of this case there is at least a reasonable possibility that such leave would be granted. Assuming that the evidence was relevantly ‘fresh’ it is likely that an appeal would be allowed, given the mutual mistake made by the parties. What further steps should then be taken would give rise to various factual issues which may be better dealt with in original rather than appellate jurisdiction. The consequence is that it would be more convenient both to the parties and to the Court to vary the order pursuant to O 35 r 7 rather than leave the parties to pursue an appeal.(c)It would be inappropriate to re-open the orders if doing so would affect the rights and interests of third parties. One possible third party is the State of South Australia. In their Notice of Motion the Perres have sought an order that the State of South Australia be paid out of the fund. For the reasons discussed below it is not appropriate to make that order. Given the orders that I propose to make in relation to the Notice of Motion filed by the State (also discussed below) I am of the view that re-opening the orders would not affect the State’s interest. The other parties that could be affected are the other lawyers in whose favour orders were made on 18 December 2003 and 16 April 2004. The only persons who it is agreed did not hold a practising certificate are Risu and Townsend & Reynolds. For this reason it might be thought that the only aspect of those orders that needs to be re-opened is the reference in them to those companies and that they can remain in place in relation to the other lawyers. However, it is clear from the Points of Claim that Risu brought these proceedings on behalf of ‘the practice’ including the other lawyers. Mr Whitington QC, who appeared for the lawyers and who agreed, on their behalf, to the orders being re-opened, appeared for them all including the two companies. Further, the orders that were made were consent orders. Once those orders are set aside in any significant way, it may be appropriate to reconsider whether or not the agreement upon which the orders were made remains extant. I have not heard any submissions in relation to these issues. Plainly they need to be explored before I can determine to what extent the orders already made should be varied.

Ratio Decidendi

Legal Principle Established

Established by: SELWAY J

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