JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SINGH -v- SINGH [No 4] [2010] WASC 224
CORAM: MAZZA J
HEARD: 21 JUNE, 9 & 22 JULY 2010
DELIVERED : 24 AUGUST 2010
FILE NO/S: CIV 1677 of 2004
BETWEEN: SARDUL SINGH
Plaintiff
AND
MAN MAHAN SINGH
Defendant
Catchwords:
Practice and procedure - Application by plaintiff to set aside final orders which have been extracted - Inherent power of the court to do so
Legislation:
Rules of the Supreme Court 1971 (WA), O 43 r 1
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr E Carlose
Defendant: Mr S S Sandhu
Solicitors:
Plaintiff: Eapon Carlose
Defendant: S S Sandhu
Case(s) referred to in judgment(s):
Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
D'Orta‑Ekenaike v Victoria Legal Aid [2000] HCA 12; (2005) 223 CLR 1
Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145
Narayan bhnf Wignall v Morphett [No 2] [2010] ACTSC 32
R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1
Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264
Singh v Singh [No 3] [2010] WASC 64
Sirius Shipping Corporation v The Ship Sunrise [2007] NSWSC 766
MAZZA J: By chamber summons filed 1 June 2010, the plaintiff applied for certain orders pursuant, it was said, to my judgment dated 24 March 2010. The application has been the subject of three hearings, on 21 June 2010, 9 July 2010 and 22 July 2010. During this period, the orders sought by the plaintiff have evolved. When the matter was before me on 22 July 2010, the plaintiff's counsel sought orders in terms of a Minute dated 18 July 2010. The orders sought in that Minute are as follows:
1.The Plaintiff be granted leave to amend the Defendant's name in the title in the manner shown above. [Man Mahon Singh Bal].
2.The Defendant forthwith provide Eapon Carlose, the Plaintiff's Solicitor, with the current residential address of his brother-in-law, Jaspal Singh s/o Harbhajan Singh (Jaspal).
3.Orders Nos 3 and 4 of the Judgment herein dated 26 March 2010 be deleted and replaced by the orders following.
4.Within 7 days of receipt from the Plaintiffs Solicitor of
(a) an Irrevocable Power of Attorney (hereinafter referred to as 'PA 1'), in triplicate, a copy of which is attached to the Plaintiff's Supplementary Submissions dated 18 July 2010, pertaining to the property and the house erected thereon at No 14 Jalan Lim Swee Aun, Birch Village 34000, Taiping, Perak, Malaysia, held under Grant No. 53671, Mukim Tupai, Lot 1606, District of Larut & Matang, in the State of Perak, Malaysia (hereinafter referred to as No 14'), the Defendant do execute, in accordance with directions of the Plaintiff's solicitor and in the presence of a Notary Public in Perth the 3 copies of the…
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- AGLC
- Singh v Singh [No 4] [2010] WASC 224
- Case
- [2010] WASC 224
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the inherent jurisdiction of the court could be invoked to recall or vary final orders. The court considered whether such an inherent power existed and, if so, whether it could be exercised in the circumstances of this case. The court also examined the principle of finality in litigation and its importance in the administration of justice.
In delivering the judgment, the court noted that the inherent jurisdiction of a court is broad and dynamic, deriving from the powers necessary for the administration of justice. However, the court found that there was no decided case law to support the existence of an inherent power to recall or vary final orders for the purpose of facilitating actions in another jurisdiction. The court emphasised the importance of finality in litigation, a principle that has been consistently upheld by the High Court. The court concluded that the plaintiff's application to set aside the final orders was not supported by the inherent jurisdiction of the court.
The court dismissed the plaintiff's application, upholding the finality of the orders made in the previous proceeding. The court held that the inherent jurisdiction of the court did not extend to recalling or varying final orders for the purpose of facilitating actions in another jurisdiction. The orders remained in place, and the plaintiff's application was unsuccessful.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
With respect to the plaintiff's counsel, insufficient attention has been given to this fundamental issue. Mr Carlose, in his written submissions, put the plaintiff's case on the question of jurisdiction as follows:It is now settled that where neither the facts nor the law are to be agitated again and where the court is making a further or consequential order to resolve a procedural matter that remains unresolved, which is the case here, the court is empowered to act. Sirius Shipping Corporation v The Ship Sunrise [2007] NSWSC 766 at [37] ‑ [42] and Narayan bhnf Wignall v Morphett [No 2] [2010] ACTSC 32. See also Singh v Singh [No 3] [2010] WASC 64 at [28]. The orders that I made were extracted pursuant to O 43 r 1 of Rules of the Supreme Court1971 (WA). They are plainly final orders disposing of the proceedings. Once such an order is made and then perfected, subject to any liberty to apply given in the order, or any relevant statutory provision, or the inherent jurisdiction of the court, the trial judge is functus officio and has no further power in the matter. One frequently invoked statutory provision used to correct errors or mistakes made in any final judgment or order is O 21 r 10 of the Rules of the Supreme Court1971, known as the slip rule. The plaintiff has not sought to invoke the slip rule, nor could it conceivably have been invoked. This is because no mistake was made by the court or the plaintiff's lawyer when the final orders were made. The plaintiff is left to rely on the inherent jurisdiction of the court to provide a basis for the orders he now seeks. The scope of the court's inherent powers is wide, dynamic and defies exhaustive definition: see Mason K QC The Inherent Jurisdiction of the Court (1983) 57 ALJ 449, 449, 458 ‑ 459. The jurisdiction derives from the powers that a court has by virtue of it being a court: R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1, 7. Such powers are necessary for the administration of justice: Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264, 270. Mason QC described the court's inherent jurisdiction as 'a judicial power of last resort that will be invoked to block certain types of conduct which are not regulated by statutes or rules of court, or indeed expressly permitted by them' (57 ALJ 449, 458). Is there an inherent power to recall or vary final orders in order to facilitate actions which will be undertaken by the successful party in another jurisdiction? If such an inherent power exists, I have been unable to find a decided case to support its existence. While the absence of precedent is not decisive, it is hardly surprising. One of the clear policies of the law is that there should be finality in litigation. This principle has been emphasised on many occasions in the High Court in such cases as Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145, 154; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 [94]; D'Orta‑Ekenaike v Victoria Legal Aid [2000] HCA 12; (2005) 223 CLR 1, 17; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218, 223.