HOME / UCPR 667 and 668 – Re-Adjudication Short of Appeal — Scope and Reform

FEATURE ARTICLE - Issue 58 Articles, Issue 58: Dec 2012

UCPR 667 and 668 – Re-Adjudication Short of Appeal — Scope and Reform

BY Hearsay

1007 Views

Finality in litigation is a tenet of our system of justice. It reflects a need for certainty in social and commercial dealings. However, the realty of adjudication by humans, not machines, commands some latitude.

The desirability of early correction of judicial error, coupled with the cost and delay of securing appellate correction, necessitate trial court mechanisms for displacing or altering judgment and orders (whether interlocutory or final).

In consequence the superior courts in Australia (like most courts founded in a common law tradition) harbour jurisdiction whereby the adjudicating court, in limited circumstances, may vary or set aside orders made by the court after a hearing on the merits.

In the Uniform Civil Procedure Rules 1999 (Qld) those provisions are to be found in rr 388, 667 and 668. The court also harbours inherent jurisdiction.

The focus of this paper is upon rr 667 and 668, and in particular how well they operate to treat judgments or orders where errors of law or fact have ensued.

The jurisprudence in New South Wales1 is well advanced in this sphere and informs the inquiry. So too does the inherent jurisdiction.

The conclusion expressed in this paper is that rr 667 and 668, properly construed, provide reasonable scope for efficient and cost effective treatment of error, but could be improved by amendment to r 667 in terms adopted recently in its NSW analogue.

Finality:

Finality (like natural justice) is a core element of the rule of law.

In Burrell v R,2 the High Court plurality3 wrote:

[15] … (I)t is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D’Orta-Ekenaike v Victoria Legal Aid: (2005) 223 CLR 1 at 17 [34]; [2005] HCA 12 . “A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.” That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud: DJL v Central Authority (2000) 201 CLR 226 at 244—245 [36]—[37], and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.

[16] … (T)he principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, Judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly.

Relevant Rules:

The relevant provisions are UCPR (Qld) rr 388, 667 and 668. The relevant UCPR (NSW) provisions are rr 36.15 and 36.16. These are set out in annexure ‘A’ hereto. UCPR (NSW) r 36.17, in effect, is in the same terms as UCPR (Qld) r 388 ‘slip rule’.

Saliently, UCPR (Qld) (UCPR (NSW) likewise) contains provision in r 5, relevantly:

The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense … These rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating a purpose of these rules.

Inherent Jurisdiction:

In Frith v Schubert4 Peter Lyons J summarised the inherent jurisdiction applicable prior to entry of judgment:

[10] In Autodesk Inc v Dyason (No 2)5, the High Court held that, at least prior to its formal entry, that court had jurisdiction to recall a judgment which had been pronounced, if it had been pronounced against a person who, without fault on the part of that person, had not had the opportunity to be heard as to why that judgment should not be pronounced.6 However, Mason CJ expressed the view that the jurisdiction was broader.7 In De L v Director General, NSW Department of Community Services (No 2),8 a joint judgment of five members of the High Court recognised the broader jurisdiction, but noted that a heavy burden was cast upon an applicant for reopening, and the applicant must show that such a course is required “without fault on his part”.9

What of the position after entry of judgment? A useful entry in the discourse is to be found in Newmont Yandal Operations Pty Ltd v The J Aron Corporation & Anor.10 The leading judgment there was delivered by Spigelman CJ (Santow and Handley JJA agreeing).

The only relevant UCPR (NSW) rule in play there was the slip rule in r 36.17. The reason probably was that r 36.16 (3A) — (3C) had not then been enacted. The decision probably spawned such enactment.

The judge below (the trial judge recused himself) had set aside an entered order and substituted another order to avoid what, in effect, were unintended consequences of an intended order made by another judge in the Equity Division concerning the corporate interest of the parties in a series of proceedings. The appellant party sought to argue that there was no jurisdiction. The appeal was unsuccessful.

Referring to Re Swire; Mellor v Swire11, Ivanhoe Gold Corporation Ltd v Symonds12 and DJL v The Central Authority13, the following propositions were enunciated:

the inherent jurisdiction to vary, modify or extend an order may be reflected in, but ought not be confined by the ‘slip rule’.
the ‘slip rule’ ought be construed through the focus of the modern UCPR (NSW) provision as to efficiency and cost (that is the UCPR (Qld) r 5 analogue).
whether under the inherent jurisdiction or the ‘slip rule’, where the order expresses a matter contrary to the judge’s intention, then the court had jurisdiction to vary, alter or extend the same.
the ‘slip rule’ and inherent jurisdiction also permitted recall of a regularly entered order the trial judge intended to make, but only where that order had unforseen or unintended legal consequences, including consequences for other proceedings.
the judge who made the order overwhelmingly is the preferable person to correct it, recusal ordinarily causing unnecessary delay and additional expense.

The former Chief Justice wrote:

[79] This inherent jurisdiction has been expressly affirmed in DJL. Accordingly, the Supreme Court has jurisdiction to correct a duly entered judgment where the orders do not truly represent what the Court had intended to pronounce. This principle has been applied on numerous occasions. (See e.g. Hogarth’s Estate supra at 21.5 per Burbury CJ; Coppins v Helmers ; Brambles Constructions Pty Ltd (Third Party) [1969] 2 NSWLR 279 at 281 per Herron CJ, Sugerman and Mason JJA; Gikas v Papanayiotou [1977] 2 NSWLR 944 at 953—984 per Needham J; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28F-G per Sheller JA; Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559 at 562—563 per McLelland CJ in Eq)

[80] The formulation approved recently in DJL , should be accepted as authoritative. That formulation, I note, is in quite different terms to the slip rule. There may be other aspects of the inherent jurisdiction which also overlap with the slip rule, but it is unnecessary to consider them.

Newmont was referred to with approval recently by the Queensland Court of Appeal but as a case confined to its peculiar facts.14

NSW Jurisprudence:

The UCPR (NSW) provisions15 have been the subject of extensive consideration. The procedural concept goes by the title ‘re-opening’.

It is noteworthy that r 36.16 allows of:

in every instance that the relevant judgment or order may be either set aside or varied.
a period of 14 days from any judgment or order for application for re-opening (irrespective of prior perfecting by entry).

In the seminal decision of Wentworth v Rogers16, Barrett J17, summarised the relevant principles:

[7] On the application for re-opening of the hearing, senior counsel for the second plaintiff referred to a number of the High Court decisions on re-opening after judgment but before entry of orders. The first plaintiff, who again appeared in person, made reference to a great number of authorities. While cases on this subject as it affects appellate courts are no doubt instructive, the fact remains that treatment of the issue at that level is affected by considerations which do not apply when it is sought to have proceedings determined by a single judge at first instance re-opened after judgment. In R v Nitin Giri (No 2) [2001] NSWCCA 234, Heydon JA distilled from High Court authority (Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672, State Rail Authority (NSW) v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29, Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300) the three issues central to the re-opening jurisdiction which the High Court regarded as exercisable by appellate courts in only “extremely rare” or “quite exceptional” circumstances and then only with “great caution”:

first, whether the appellant has shown that, without accident or fault on the appellant’s part, he or she has not been heard on a relevant matter;
second, whether the appellant has shown an error in the court’s reasoning because of a misapprehension of the facts; and
third, whether the appellant has shown an error in the court’s reasoning because of some misapprehension of the relevant law.

(See also, in particular, Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 and De L v Director General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207.)

…

[9] It seems to me that the relevant principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision . I adopt, in that connection, the following observation of Rix LJ in Compagnie Noga D’Importation et D’Exportation SA v Abacha [2001] 3 All ER 513:

“I do not wish to say anything against the usefulness of the reconsideration jurisdiction, within its proper limits. I have made use of it myself. However, it is in the nature of the legal process that, once judgment has been rendered, analysis thereafter becomes clarified and refined, and citation of authority is applied to the findings made at first instance so as to illuminate that clarification and refinement of analysis of which I speak. But that is the function of the appeal process. In my judgment, to grant this application that I reconsider my judgment would subvert the appeal process itself. In doing so, it would not answer the interests of justice, but would be the antithesis of justice according to law. There are of course cases where an error of fact or law may be too clear for argument. The best test of that is perhaps – but not necessarily – where the judge himself identifies the error which concerns him. In such a case, it is better that the error is corrected without imposing on the parties the need for an appeal. But no parallel to Noga’s application has been cited to me. It is in my judgment wrong for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits.”

(emphasis added)

By reference to Wentworth v Wentworth18, his Honour usefully identified instances where review had been allowed19:

where the reasons for judgment inadvertently did not deal with important matters argued by counsel at the hearing, and where an appeal to correct this would involve inevitable delay.
where the reasons involved infelicity of expression or ambiguous statements which could be corrected by the trial judge upon bringing in short minutes.

where reopening was in respect of an order which was consequential upon a finding of error of law, the trial judge had no intention that the order have the effect that further evidence could be called, and where the possible effect of the order had not been the subject of argument at the hearing.
where on a strike out application a party had misunderstood the basis of a pleading and failed to address the issue in argument.
where excision of a paragraph from a judgment was sought where a trial judge had mistakenly referred in reasons to a situation which did not exist.
where the trial judge recalled the order after deciding it was wrong immediately after making it.

Such re-opening principles were approved recently at appellate level in Kopas v Celermajer Holdings Pty Ltd.20 There due to shallow argument in a lease dispute before the trial judge (there was a late change of counsel), there ensued a decision founded on a legal basis contrary to authority. The trial judge corrected this on re-opening. An appeal apropos the re-opening was dismissed essentially on the pragmatic basis that if the judge was right the appellant could have no quarrel, but if wrong then the matter could be corrected on appeal.21 The judge’s altered view was found to be sound.

UCPR (Qld) rr 667 and 668 afford a measure of flexibility in the management of litigation, without significant departure from the juridical tenet of finality. The inherent jurisdiction provides cognate procedural support.

UCPR Qld) 667:

This rule only applies to judgments on the merits, not default judgments: subr (3).

In Frith v Schubert22, Peter Lyons J wrote:

[13] It was not suggested, and there is no reason to think, that the provisions of these rules replace the inherent jurisdiction, referred to earlier.

[14] There are clearly two different powers conferred by subrr (1) and (2) of r 667. That is apparent from the fact that subr (1) includes a power to vary, as well as a power to set aside; and this sub-rule includes a time limit, whereas subr (2) expressly provides for setting aside an order “at any time”.

[15] The exercise of the powers found in r 667(2) and in r 668(3)(b) depend upon the satisfaction of stated conditions. No such conditions are identified for the exercise of the power conferred by r 667(1). It would seem to follow that r 667(1) confers a general discretion on a court to vary or set aside an order. The exercise of that discretion cannot be confined by the conditions set out in rr 667(2), or 668(1).

[16] Counsel who appeared for Ms Frith, nevertheless, accepted, in my view correctly, that considerations relating to the public interest in the finality of litigation are relevant to the discretion conferred by r 667(1).

Subrule (2)(a) and (b) address the infrequent circumstances of fraud and adjudication in absentia respectively. Paragraphs (c) and (f) deal with orders in equity which often require subsequent moulding or substitution. For example, a party gaining decree of specific performance may subsequently apply for leave to elect for a damages remedy on account of ongoing repudiation.23

Subrule (2)(d)24 was addressed and exemplified in Queensland Pork Pty Ltd v Lott25 in circumstances where judgment was given for a certain sum which the judge believed to be correct and obviously he intended be expressed. On appeal, Cullinane J (McMurdo P and Jones J agreeing) wrote at [19]:

I think the contention of senior counsel for the respondent that the matter falls within r 667(2)(d) is also correct. This permits a court to set aside an order if the order does not reflect the court’s intention at the time the order was made. Here it seems clear that his Honour at all times intended that judgment would be entered for the respondent in the sum for which the respondent had made out an entitlement after taking into account the credit and off-sets to which I have referred and was under the mistaken belief that the parties had agreed upon what that entitlement was and for reasons which cannot be now known arrived at the figure for which judgment was first pronounced … I also think that in these circumstances the court would have an inherent power to correct the judgment. See Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300. The first judgment had not been taken out before His Honour dealt with the matter again.

In my view r 667, in its present form, is performing its role tolerably well but could be improved in two respects.

First, the jurisdiction to make orders in subr (2) should be extended to “or vary”. Each of the circumstances for invoking jurisdiction in that subrule, in the particular case, as a matter of discretion, may better entail varying an order made rather than setting it aside.

Second, additional subrules ought be added (reflecting subr (3A) to (3C) of UCPR (NSW) r 36.16) providing for a strict 14 days to make a subr (1) application for setting aside or variation of a judgment or order so as to:

allow of the parties an opportunity to read and reflect upon the reasons and orders.
furnish an equivalent period of time for the court to do likewise.

Application for re-opening (or of the court’s own motion) can then ensue if thought apt, not confined to subr (2) grounds.

The NSW re-opening jurisprudence is apt for adoption in Queensland.

UCPR (Qld) r 668:

In essence, this rule is designed to deal with two circumstances:

the modification of an order to cater for the specific circumstance arising from its form.26

facts and circumstances arising before or after judgment which are best the subject of an application in the trial division rather than being raised as new facts on appeal.

As to the latter r 766(2) provides that in the appeal division further evidence may be given without special leave but the issue is one of difficulty, in particular where the evidence arose before the judgment below.27

In Frith v Schubert28, Peter Lyons J wrote:

[23] Analogies have been drawn between this rule (and its predecessor), and a decision on an appeal to permit a party to present evidence which was available, but not discovered before trial.29 This rather strongly suggests that r 668(1)(b) is not satisfied if facts were known to a party at the time the order was made, but not presented to a court. Any other view would be inconsistent with the general principle that a party is expected to present the entirety of its case relevant to the issues for determination, at the hearing conducted for the determination of those issues.30 Such a view would be inimical to the achievement of finality in litigation. It can hardly have been the intention of those responsible for the drafting of the rule.

This statement reflects the position as it obtains where fresh evidence is sought to be introduced on appeal.

The rule requires no amendment to reflect the abovementioned matters. Where the rule could require amendment is in respect of the use of the language “entitling” and “entitled”.

The decisions in KGK Constructions and Rankin v Agen Biomedical Limited31 are to the effect that these terms have a wider application. The facts that come to light need not be of a character as to create an absolute entitlement. Rather it suffices that they “create an entitlement to favourable consideration”.32

While there is temptation to posit amendment of r 668 to reflect this jurisprudence, it is difficult to identify language which would readily conduce to that end. Perhaps as far as one could go is to opine that in r 668(1)(b), the language “would have entitled” ought be amended to “may have entitled”.

Conclusion

The enactment of r 5, providing for consideration of cost efficiency and minimisation of delay, conduces to a more liberal construction of such provisions.

Judgments or orders, however, are not lightly to be disturbed. A re-opening should not become an opportunity for fresh argument or re-argument, nor should the same ordinarily displace the proper function of an appeal to correct errors in the trial division.

Measures to improve the drafting of r 667 are canvassed herein. In essence they reflect the current drafting of UCPR (NSW) r 36.16 subr (3A) to (3C), and adoption of the significant jurisprudence r 36.16 has generated.

Instructive apropos rr 667(1) and 667(2)(b) is the principle enunciated in such NSW jurisprudence that:33

… a single judge whose decision is susceptible to appeal through readily available channels … should allow a reopening after judgment where it is obvious to that judge that the decision has miscarried, and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court.

R J Douglas S.C. Annexure ‘A’

RELEVANT UCPR (QLD) RULES

388 Mistakes in orders or certificates

(1) This rule applies ifâ

(a) there is a clerical mistake in an order or certificate of the court or an error in a record of an order or a certificate of the court; and

(b) the mistake or error resulted from an accidental slip or omission.

(2) The court, on application by a party or on its own initiative, may at any time correct the mistake or error.

(3) The other rules in this part do not apply to a correction made under this rule.

667 Setting aside

(1) The court may vary or set aside an order before the earlier of the followingâ

(a) the filing of the order;

(b) the end of 7 days after the making of the order.

(2) The court may set aside an order at any time ifâ

(a) the order was made in the absence of a party; or

(b) the order was obtained by fraud; or

(d) the order does not reflect the court’s intention at the time the order was made; or

(e) the party who has the benefit of the order consents; or

(f) for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.

(3) This rule does not apply to a default judgment.

Note â

For a default judgment, see rule 290.

668 Matters arising after order

(1) This rule applies ifâ

(a) facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or

(b) facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.

(2) On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.

(3) Without limiting subrule (2), the court may do one or more of the followingâ

(a) direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just;

(b) set aside or vary the order;

RELEVANT UCPR (NSW) RULES

36.15 General power to set aside judgment or order

(cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

36.16 Further power to set aside or vary judgment or order

(cf SCR Part 40, rule 9)

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2) The court may set aside or vary a judgment or order after it has been entered if:

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:

(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

Footnotes

Decided in respect of the Uniform Civil Procedure Rules 2005 (NSW) and the predecessor thereof.
(2008) 238 CLR 218.
Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ.
[2010] QSC 444.
(1983) 176 CLR 300.
Autodesk at 301, 302, 308, 312, 317.
Autodesk at 302; see also 322 per Gaudron J.
(1997) 190 CLR 207.
at 215.
(2007) 70 NSWLR 411.
(1885) 30 ChD 239 at 243, 246, 247.
(1906) 4 CLR 642.
(2000) 201 CLR 226.
Hammercall Pty Ltd v Robertson [2011] QCA 380 at [31] — [34].
and predecessors.
[2002] NSWSC 921.
As Barrett JA then was.
[1999] NSWSC 638.
Wentworth v Rogers at [9].
[2012] NSWCA 53.
at [24].
[2010] QSC 444.
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 260.
‘the order does not reflect the court’s intention at the time the order is made’.
[2003] QCA 271.
KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 QdR 13.
Horne v Commissioner of Main Roads [1991] 2 QdR 38 at 41.
[2010] QSC 444.
See Breen v Lambert, unreported, Thomas J, SC No 4547 of 1988, 16 August 1991, referred to in IVI Pty Ltd Baycrown Pty Ltd [2005] QSC 330 at [22]; and IVI. See also Crime and Misconduct Commission v Bioletti [2006] QSC 159 at [10].
See Henderson v Henderson (1843) 3 Hare 115 ; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 , 598.
[1999] 2 QdR 435.
see Rankin at [7].
Wentworth v Rogers, op cit.