Ramesh Gupta v Australian Capital Territory
[2011] ACTSC 154
•30 August 2011
RAMESH GUPTA v AUSTRALIAN CAPITAL TERRITORY
[2011] ACTSC 154 (30 August 2011)
PROCEDURE – Supreme Court procedure – discontinuance – effect on proceedings – whether amendment possible after discontinuance – amendment of reasons for decision.
PROCEDURE – Supreme Court procedure – change of parties – whether possible to substitute parties after discontinuance – need for withdrawal of notice of discontinuance.
Court Procedures Rules 2006 (ACT), rr 220, 230, 241, 1160, 1611, 6906
Health Act 1993 (ACT), s 63
Court Procedures Act 2004 (ACT), s 33
Diamond, A. S., The Annual Practice 1963 (Sweet and Maxwell: London, 80th Ed, 1962)
Cooper v Williams [1963] 2 QB 567
Lambert v Mainland Market Deliveries Ltd [1977] 2 All ER 826
ROFA Sport Management AG & Anor v DHL International (UK) Ltd & Anor [1989] 2 All ER 743
Fowler v Renmark & Paringa District Hospital Inc (1988) 51 SASR 506
Re Criminal Property Confiscation Act 2000 (WA); Ex parte State Director of Public Prosecutions (WA) (2002) 130 A Crim R 581
Whistler v Hancock (1878) 3 QBD 83
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Farley and Lewers Ltd v Attorney-General [1963] SR (NSW) 814
Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464
Woden Valley Glass v Psaila (1993) 44 FCR 140
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387
Gold Reefs of Western Australia Ltd v Dawson [1897] 1 Ch 115
Apple Computer Inc v Popiolek [1984] VR 156
Email Finance Ltd v Registrar of Titles & Anor (SCV, Tadgell J, No 5636/81, 1 September 1982, unreported)
Newcomen v Coulson (1878) 7 Ch D 764
National Trustees & Co v Crowley (1902) 8 ALR 215a
Fox v Commissioner for Superannuation (No 2) [1999] FCA 372
Herman, Ex parte; Mathieson (No 2), Re (1960) 78 WN (NSW) 6
Mercer Alloys Corporation & Anor v Rolls Royce Ltd [1972] 1 All ER 211
Philip Morris Ltd v Bridge Shipping Pty Ltd & Ors [1994] 2 VR 1
EX TEMPORE JUDGMENT
No. SC 523 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 30 August 2011
IN THE SUPREME COURT OF THE )
) No. SC 523 of 2010
AUSTRALIAN CAPITAL TERRITORY )
DR RAMESH GUPTA
Plaintiff
v
AUSTRALIAN CAPITAL TERRITORY
Defendant
ORDER
Judge: Refshauge J
Date: 30 August 2011
Place: Canberra
THE COURT ORDERS THAT:
the plaintiff have leave to withdraw the Notice of Discontinuance filed on 14 March 2011, such notice to be deemed to have been withdrawn on 30 August 2011;
the first defendant and the second defendants be removed as parties under r 230 of the Court Procedures Rules 2006 (ACT);
the Australian Capital Territory be included as the defendant under r 220 of the Court Procedures Rules 2006 (ACT);
the title of the proceedings be amended accordingly;
the plaintiff file an Amended Originating Application within seven days and serve a sealed copy within seven days thereafter on the Australian Capital Territory;
the Australian Capital Territory file and serve a Notice of Intention to Respond within seven days of service on it of the Amended Originating Application;
the plaintiff file and serve a Notice of Discontinuance in these proceedings within seven days of service on it of the Notice of Intention to Respond on the Australian Capital Territory; and
upon the filing of the Notice of Intention to Respond, the court issue a Corrigendum in respect of the decisions in this matter numbered [2011] ACTSC 39 and [2011] ACTSC 43 as follows.
(a) In [2011] ACTSC 39, the following amendments be made:
(i) the title of the proceedings be altered to reflect the change of parties;
(ii) in order 3(b) the word “defendant’s” be substituted for the word “defendants’”;
(iii) in order 3(d) the word “defendant” be substituted for the word “defendants’”;
(iv)in paragraphs 4, 6, 57, 121, 124(3)(b) and 124(3)(d) the words “defendants’” be substituted by “defendant’s”;
(v) in paragraphs 4, 6, 56, 70, 82, 105, 106, 110, 111, 112 and 120 the word “defendant” be substituted for the word “defendants”;
(vi) in paragraphs 4 and 5 the words “first defendant,” be omitted.
(vii) in paragraphs 41 and 47 the words “Dr O’Leary” be substituted for the words “the first defendant, Dr O’Leary”;
(viii)paragraph 54 be varied by omitting “As to the parties to the Originating Application, Dr O’Leary was made a party as acting chair of the committee and as the person who appears to have made, or at least communicated, the decision to Dr Gupta, but who did not attend the relevant meeting, and the second defendants were the members of the committee who deliberated on Dr Gupta’s application” and the following substituted, “Dr O’Leary was acting chair of the committee and the person who appears to have made, or at least communicated, the decision to Dr Gupta, but who did not attend the relevant meeting of the members of the committee who deliberated on Dr Gupta’s application”;
(ix) paragraphs 113, 114, 116 and 118 be varied by substituting for the words “defendants” the initials “MDAAC”; and
(x) paragraphs 116 and 118 be varied by substituting the words “the other members of the MDAAC” for “the second defendants”.
(b) In [2011] ACTSC 43, the following amendments be made:
(i) the title of the proceedings be altered to reflect the change of parties;
(ii) in paragraphs 10 and 11 the word “defendant” be substituted for the word “defendants”; and
(iii) in paragraph 10 the word “first” be deleted.
On 11 March 2011, I gave the plaintiff leave to discontinue these proceedings and ordered that the plaintiff pay some of the defendants’ costs and that the defendants pay some of the plaintiff’s costs.
On 15 March 2011, the plaintiff filed a Notice of Discontinuance in accordance with my order thus bringing these proceedings to an end.
No formal order, however, was sealed incorporating the terms of the order I had made. The parties had then sought to file a general form of consent order under r 1611 of the Court Procedures Rules 2006 (ACT) (the Court Procedures Rules), in which they sought to substitute the Australian Capital Territory for the named first and second defendants and sought that the decision and order I had made be altered to reflect that order.
The consent was rejected, in my view, properly, because the filing of the discontinuance had brought the proceedings to an end. See Cooper v Williams [1963] 2 QB 567 (at 580). In that case, Lord Denning MR cited, with approval, from The Annual Practice 1963 (Diamond, A, S., Sweet and Maxwell: London, 80th Ed, 1962), that, unlike a stay, a discontinuance cannot be “removed”. This was followed in Lambert v Mainland Market Deliveries Ltd [1977] 2 All ER 826 (at 832-3). It certainly appears that a discontinuance has, for these purposes, the same effect as a dismissal or judgment: ROFA Sport Management AG & Anor v DHL International (UK) Ltd & Anor [1989] 2 All ER 743 (at 749).
In Australia, Cox J stated in Fowler v Renmark & Paringa District Hospital Inc (1988) 51 SASR 506 (at 507) that “[t]here is no doubt that the effect of a discontinuance is to bring an action to an end”. See also Re Criminal Property Confiscation Act 2000 (WA); Ex parteState Director of Public Prosecutions (WA) (2002) 130 A Crim R 581 (at 585).
The consequences of this were that, in a line of cases beginning with Whistler v Hancock (1878) 3 QBD 83, most dealing with self-executing orders, it was held that once an action had been brought to an end the court had no inherent power to revive it. This would have provided an insuperable obstacle to the application.
There are, however, two answers to this.
In the first place, the principle in Whistler v Hancock has now been severely qualified, if not entirely abrogated, by the High Court in FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268.
In the second place, at least so far as the addition and removal of parties is concerned, there has been legislative intervention in the form of rr 220 and 230 of the Court Procedures Rules, in both cases permitting orders under the rules to be made “at any stage in the proceedings”.
Clearly, the proceedings must be on foot in a relevant sense for that to be permitted. This would include the hearing of the proceedings in an appellate court. There is considerable authority in support of this. See Farley and Lewers Ltd v Attorney-General [1963] SR (NSW) 814 (at 821-4); Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 (at 481); Woden Valley Glass v Psaila (1993) 44 FCR 140 (at 150).
It would also include the situation where an oral order had been pronounced but the sealed order had not been issued. Thus, as the NSW Court of Appeal held in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387 (at [44]), “final orders regularly made and formally entered can only be challenged on appeal or in proceedings to set aside the judgment for fraud”. Of course, this does not exclude what is commonly known as the slip rule, which, in this jurisdiction, is enacted in r 6906 of the Court Procedures Rules.
Here, it seems to me that the filing of the Notice of Discontinuance brought the proceedings to an end and, in the absence of an appeal prevented rr 220 or 230 from operating.
It is clear, however, that the termination of the proceedings by discontinuance does not completely prevent any further proceedings.
Thus, the courts have held that notwithstanding a discontinuance, the proceedings survived for the purpose of securing payment of costs and in those circumstances the court retains power to substitute parties where a party’s name has been used without authority: Gold Reefs of Western Australia Ltd v Dawson [1897] 1 Ch 115.
Naturally, a perpetual injunction survives a discontinuance: Apple Computer Inc v Popiolek [1984] VR 156. An interlocutory injunction will, of course, be brought to an end: Email Finance Ltd v Registrar of Titles (SCV, Tadgell J, No 5636/81, 1 September 1982, unreported). Any undertaking as to damages, however, survives and the beneficiary may seek and obtained an inquiry as to damages after discontinuance: Newcomen v Coulson (1878) 7 Ch D 764.
These, however, are special circumstances and do not seem to me to negate the proposition that, once made and recorded, a decision is only able to be varied or challenged on appeal.
Given that there is no further action required of the court following the filing of a Notice of Discontinuance, it seems to me that this is the equivalent of a sealed order, so far as entering of the termination of the proceedings are concerned and that there is no power in the trial court to make an order once the proceedings are at an end.
The early decision of Holroyd J in National Trustees & Co v Crowley (1902) 8 ALR 215a may appear to be a counter-example to this approach. Unfortunately, as so often happens, the record of his Honour’s decision is particularly brief. From a perusal of the report of the submissions it would appear that the decision was particularly influenced by the decision of Gold Reefs of Western Australia Limited v Dawson.
The situation there was that a writ had been issued but not properly endorsed as required by the relevant legislation. The defendant entered a conditional appearance and then served a notice of motion to set aside the writ. After service of the notice, but before the return of the motion, the plaintiff filed a Notice of Discontinuance. The court nevertheless proceeded to set aside the writ ordering the plaintiff to pay costs.
In the decision of Gold Reefs of Western Australia Ltd v Dawson, the plaintiff’s name had been used in the proceedings without authority. The court referred to what is described as a settled practice that “after the dismissal of a bill with costs, the person whose name had been used as a plaintiff without authority could obtain an order to strike out his name”.
That seems to me to be a very different situation to the one here. There is, perhaps, some analogy with the commencement of irregular proceedings as in National Trustees & Co v Crowley, but, again, it is, in reality quite different.
Accordingly, it seems to me that the filing of the Notice of Discontinuance is the same as the recording of an order of the court by issuing a sealed order.
The difference is that a Notice of Discontinuance can be withdrawn. As Gaudron J held in FAI General Insurance Co Ltd v Southern Cross Exploration NL (at 288), a proceeding which can be reinstated (or, I interpolate, which does not prevent a subsequent proceeding for the same cause of action, as is the case with a discontinuance) is distinct from an order operating as a final determination of the matter in issue.
It is clear from Fowler v Renmark & Paringa District Hospital Inc that a Notice of Discontinuance can be withdrawn. Though the rules were somewhat different in that case, it seems to me that r 1160 of the Court Procedures Rules is relatively to the same effect.
I will, therefore, permit the plaintiff to withdraw the Notice of Discontinuance. That will, then, give me power to make the orders sought by the parties.
I am fortified in my view by the reasons of the Full Court of the Federal Court of Australia in Fox v Commissioner for Superannuation (No 2) [1999] FCA 372, where the court considered that a failure to consider a determinative statutory provision justified the court in reopening the proceedings.
The majority of Sackville and Branson JJ said (at [46] to [47]):
The first question is whether the Court should set aside the judgment. In this connection, it should be noted that the applicant provided no explanation for the failure of his legal representatives to refer the Court to section 48B of the Superannuation Act at the hearing of the appeal. Nor was any explanation provided for the delay of some three months after delivery of the judgment, before the applicant filed the motion to set aside the judgment. In these circumstances, it might be thought that to attempt to reopen the case
would be to subvert the finality of litigation and to invite interminable arguments about the importance of the legal questions to be re-canvassed...
Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300, at 310, per Brennan J.
The applicant relied, however, on the observations of Mason CJ in Autodesk (at 302-303), a case in which an application was made relying on the inherent jurisdiction of the High Court:
These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. 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 a re-hearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.
Although this passage refers to the High Court’s role as the final court of appeal, the observations have been treated as applicable to an intermediate court of appeal: Wykes v Samilk Pty Ltd [No 2], NSWCA, unreported, 18 August 1998, at 10. See also L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] (1983) 151 CLR 590, at 594-597.
I will then give the plaintiff leave to file a further Notice of Discontinuance after I make the orders and, as these proceedings have been necessitated by the defendant’s application, they should bear the costs.
The application itself is based on s 63 of the Health Act 1993 (ACT) (the Health Act). That section provides, that so far as is relevant for this purpose, the members of a clinical privileges committee are not personally liable for anything done or omitted to be done honestly and without recklessness in the exercise of a function under the Act.
There was, in these proceedings, no allegation of dishonesty or recklessness and the defendants contend, and the plaintiff appears to consent, at least does not oppose, that the proper defendant is not the members of the committee but the Territory, for s 63(3) provides that any civil liability that would otherwise attach to a member of a clinical privileges committee attaches to the Territory. The use of the word “attach” might suggest that, in fact, the liability has been transferred effectively to the Territory and that the members cannot be held liable in those circumstances.
Thus, Mr G McCarthy, who appears for the defendants, contends that the Territory should, at all relevant times, have been the defendant in the proceedings for the liability attaches to it and not to the individual members of the clinical privileges committee who were formerly named defendants.
This would not change the outcome of the proceedings, a relevant factor in all the circumstances, particularly as I had, I confess, assumed that the individually named defendants would have been indemnified by the Territory, and who were, at the hearing, represented by the ACT Government Solicitor. It will only change the name of the parties and, in compliance with s 63 of the Health Act, the actual person to whom the liability of costs that I had awarded actually attaches. Indeed, to that extent, it may be arguable that I could not make an award of costs against the named individual defendants if I were to give full effect to that section.
In this sense, there is some similarity between this application and the application of the inherent power of the court to substitute a party to ensure that the proper party is amenable to the court’s order.
This can be seen in cases where the order includes a party who can have no liability, such as for costs. See, for example, Herman, Ex parte; Mathieson (No 2), Re (1960) 78 WN (NSW) 6. Similarly, where the party has changed its legal status, such as by a corporate restructure, as in Mercer Alloys Corporation & Anor v Rolls Royce Ltd [1972] 1 All ER 211.
Accordingly, I am prepared to make the appropriate orders.
The proposed orders are, however, not sufficient to the task that is required. While the proposal seems like a consensual, and what might be termed “friendly”, rearrangement of the proceedings, it should, nevertheless, proceed properly.
Thus, r 241 of the Court Procedures Rules requires an amended application to be filed and the sealed copy served on the new defendant. As the application is made by the defendants, I see no reason to dispense with this rule. I do note, however, that Mr McCarthy announced his appearance this morning also for the Territory but, nevertheless, it seems to me that there is no occasion for dispensing with that rule.
Given, however, that the Territory is clearly supportive of the application, I have no doubt that it will facilitate the process under s 33 of the Court Procedures Act 2004 (ACT). The amended summons can be served on the Chief Solicitor; that should make service easy. Thereafter, the Territory can, no doubt speedily, file and serve a Notice of Intention to Respond. Once that is done, the proceedings are then properly commenced with the new defendant.
I was also asked to amend my reasons to reflect the new parties. I was initially reluctant to do that as it seemed to me that the time had passed and this could not be retrospectively effected.
As was pointed out in Philip Morris Ltd v Bridge Shipping Pty Ltd & Ors [1994] 2 VR 1 (at 8), however, the addition of a party makes that party a party as from the date of commencement of the proceedings.
In addition, the reality of the situation has now been recognised and the change will not affect any substantive rights. As I have not heard any significant argument on the subject, I will make the amendments asked for on this occasion, but consider that this is no precedent for such changes in the future when full argument might persuade me otherwise.
These procedures now require the plaintiff to take certain steps. As the benefit of these steps are all for the defendants and the Territory and this application should have been made a long time ago, it seems to me that the defendant parties should bear the costs of these steps and, in the circumstances, on an indemnity basis.
Accordingly, I will order that:
(1) the plaintiff have leave to withdraw the Notice of Discontinuance filed on 14 March 2011. Such notice to be deemed to have been withdrawn on 30 August 2011;
(2) the first defendant and the second defendants be removed as parties under r 230 of the Court Procedures Rules 2006 (ACT);
(3) the Australian Capital Territory be included as the defendant under r 220 of the Court Procedures Rules 2006 (ACT);
(4) the title of the proceedings be amended accordingly;
(5) the plaintiff file an Amended Originating Application within seven days and serve a sealed copy within seven days thereafter on the Australian Capital Territory;
(6) the Australian Capital Territory file and serve a Notice of Intention to Respond within seven days of service on it of the Amended Originating Application;
(7) the plaintiff file and serve a Notice of Discontinuance in these proceedings within seven days of service on it of the Notice of Intention to Respond on the Australian Capital Territory;
(8) upon the filing of the Notice of Intention to Respond, the court issue a Corrigendum in respect of the decisions in this matter numbered [2011] ACTSC 39 and [2011] ACTSC 43 as follows.
(a) In [2011] ACTSC 39, the following amendments be made:
(i) the title of the proceedings be altered to reflect the change of parties;
(ii) in order 3(b) the word “defendant’s” be substituted for the word “defendants’”;
(iii) in order 3(d) the word “defendant” be substituted for the word “defendants’”;
(iv) in paragraphs 4, 6, 57, 121, 124(3)(b) and 124(3)(d) the words “defendants’” be substituted by “defendant’s”;
(v) in paragraphs 4, 6, 56, 70, 82, 105, 106, 110, 111, 112 and 120 the word “defendant” be substituted for the word “defendants”;
(vi)in paragraphs 4 and 5 the words “first defendant,” be omitted;
(vii)in paragraphs 41 and 47 the words “Dr O’Leary” be substituted for the words “the first defendant, Dr O’Leary”;
(viii)paragraph 54 be varied by omitting “As to the parties to the Originating Application, Dr O’Leary was made a party as acting chair of the committee and as the person who appears to have made, or at least communicated, the decision to Dr Gupta, but who did not attend the relevant meeting, and the second defendants were the members of the committee who deliberated on Dr Gupta’s application” and the following substituted, “Dr O’Leary was acting chair of the committee and the person who appears to have made, or at least communicated, the decision to Dr Gupta but who did not attend the relevant meeting of the members of the committee who deliberated on Dr Gupta’s application”;
(ix) paragraphs 113, 114, 116 and 118 be varied by substituting for the words “defendants” the initials “MDAAC”; and
(x)paragraphs 116 and 118 be varied by substituting the words “the other members of the MDAAC” for “the second defendants”.
(b) In [2011] ACTSC 43, the following amendments be made:
(i) the title of the proceedings be altered to reflect the change of parties;
(ii) in paragraphs 10 and 11 the word “defendant” be substituted for the word “defendants”; and
(iii)in paragraph 10 the word “first” be deleted.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 12 September 2011
Counsel for the plaintiff: No appearance (29 August 2011)
Ms Z McCormick (30 August 2011)
Solicitor for the plaintiff: Williams Love & Nicol Lawyers
Counsel for the defendant: Mr G McCarthy
Solicitor for the defendant: ACT Government Solicitor
Date of hearing: 29 & 30 August 2011
Date of judgment: 30 August 2011
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