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Federal Judicial Scholarship |
"A Day in the Federal Court"
A Seminar conducted
by the College of Law
on Friday 26 October 2001
"Structure of a proceeding from beginning to end including the individual docket system"
The Hon Justice K E Lindgren
A Judge of the Federal Court of
Australia
INTRODUCTION
My purpose is to direct attention to some important aspects of practice in the Federal Court with particular reference to some recent developments.
JURISDICTION
Section 71, the first section in Chapter III of the Commonwealth Constitution, provides that the judicial power of the Commonwealth is vested in the High Court and "in such other federal courts as the Parliament creates". Section 77 provides that "[w]ith respect to any of the matters mentioned in" (emphasis supplied) ss 75 and 76, the Parliament may make laws –
"(i) Defining the jurisdiction of any federal court other than the High Court;
(ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
(iii) Investing any court of a State with federal jurisdiction."
What are the "matters" mentioned in ss 75 and 76? Section 75 invests the High Court with the five classes of original jurisdiction described in that section and s 76 empowers the Parliament to make laws conferring original jurisdiction on the High Court "in any matter" falling within the four paragraphs contained in that section. Accordingly, the Parliament is empowered to make laws defining the jurisdiction of the Federal Court only with respect to "matters" and, in the case of s 75 matters, the High Court will inevitably also have original jurisdiction because it is given it by the Constitution itself.
Section 19 of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act") is as follows:
"19(1) The Court has such original jurisdiction as is vested in it by laws made by the Parliament.
(2) The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts."
Succeeding ss 20-23 also deal with the Court's original jurisdiction. The appellate jurisdiction is the subject of ss 24-30A. These notes are concerned only with the Court's original jurisdiction.
Section 19 makes it clear that it is necessary to look outside that section but still to a law made by the Commonwealth Parliament to find the Court's original jurisdiction. Subsection 32(1) of the FCA Act is one such provision. It provides:
"To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked." (emphasis supplied)
This provision confers jurisdiction on the Court in respect of "associated matters". But it cannot operate unless there is first a matter in which a jurisdiction of the Court is invoked otherwise, that is, a matter in respect of which original jurisdiction has been vested in the Court by a law of the Commonwealth Parliament.
Of the many Commonwealth laws which have vested jurisdiction in the Federal Court, the following provisions account for a significant part of the Court's original jurisdiction:
On Thursday 17 June 1999 the High Court held in Re Wakim; Ex parte McNally (1999) 198 CLR 511 and the three cases heard with it that State Parliaments could not, consistently with the Constitution, confer jurisdiction on the Federal Court (or, for that matter, on the Family Court), even with the purported "consent" of the Commonwealth Parliament. However, this did not affect what has been referred to as the Court's "accrued" jurisdiction. Moreover, in one of the four cases, Spinks v Prentice, the High Court held, following its own decision in Northern Territory v GPAO (1999) 196 CLR 533, that s 51(1) of the Corporations Act 1989 (Cth) which conferred jurisdiction on the Federal Court with respect to civil matters arising under the Corporations Law of the Australian Capital Territory, was valid.
On the question of the accrued jurisdiction of the Federal Court, there were several important decisions of the High Court which pre-dated the cross-vesting legislation: Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 esp at 373 (Barwick CJ); Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 esp at 474-475, 479-480 (Barwick CJ), 511-512 (Mason J); Fencott v Muller (1983) 152 CLR 570 esp at 591 (Gibbs CJ); and Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261 at 290, 294-5 (Mason, Brennan and Deane JJ).
In the area of corporations law the effect of Wakim has been overcome by reason of a referral of legislative power by the States to the Commonwealth pursuant to s 51(xxxvii) of the Constitution and the enactment by the Commonwealth Parliament of the Corporations Act 2001 (No 50, 2001) in exercise of the power conferred. That Act now confers jurisdiction on the Federal Court "with respect to civil matters arising under the Corporations legislation": Corporations Act 2001, subs 1337B(1). Subject to a qualification arising from s 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), jurisdiction is conferred in the same terms on the Supreme Courts of the States, the Australian Capital Territory and the Northern Territory, subs 1337B(2), (3). As a result of the work of a committee appointed by the Council of Chief Justices, "harmonised" rules of court govern proceedings under the Corporations Act 2001 in all jurisdictions. In the Federal Court, these are the Federal Court (Corporations) Rules 2000.
I will digress, however, to discuss the facts of Wakim and the question of accrued jurisdiction.
George Wakim alleged that in March 1980 he was employed as a driveway attendant by a partnership conducted by Tedros Nader ("Mr Nader") and Nawal Nader ("Mrs Nader") at a service station in Lakemba. In July 1995 he obtained judgment for $786,801.45 in the Supreme Court of New South Wales for damages for personal injury which he alleged he had suffered in the course of that employment. The action was brought against Mr Nader alone and so the judgment was against him alone.
On 18 October 1995, Mr Nader became bankrupt and the Official Trustee in Bankruptcy was appointed Trustee of his estate. Pursuant to s 58 of the Bankruptcy Act 1966, Mr Nader's property vested in the Official Trustee. Mr Wakim proved in the bankruptcy in respect of the amount owing under the judgment.
In June 1987 the Official Trustee brought a proceeding in the Supreme Court of New South Wales against Mrs Nader. The Official Trustee sought declarations that the partnership had been dissolved and orders for the taking of accounts. The Official Trustee retained as his solicitors in the matter, Lobban McNally & Harney. The partners in that firm were Peter McNally and Terence McNally to whom I will refer to as "the solicitors". In December 1987, the solicitors retained Mr Cholmondeley Darvall QC to give an opinion on certain questions concerned with the proceeding brought by their client against Mrs Nader.
The proceeding against Mrs Nader was compromised in March 1990. The parties to that proceeding and the bankrupt Mr Nader agreed that Mr and Mrs Nader would pay $10,000 to Mr Wakim and that Mrs Nader would buy certain property vested in the Official Trustee for $400,000. Mr Wakim subsequently contended that the Official Trustee should have taken certain other steps against Mrs Nader and that if he had done so the amount available to creditors of the estate of Mr Nader, including Mr Wakim, would have been increased.
In July 1993, Mr Wakim commenced a proceeding in the Federal Court against the Official Trustee seeking various orders pursuant to ss 176, 178 and 179 of the Bankruptcy Act 1966. I will not set out those provisions. It is sufficient to say that they indubitably conferred jurisdiction on the Federal Court to make various orders against the trustee of a bankrupt's estate who had been guilty of breach of duty in relation to the bankrupt's estate or affairs. Mr Wakim also claimed against the Official Trustee in negligence.
After Mr Wakim had commenced the proceeding against the Official Trustee, he brought two further proceedings in the Federal Court, first against Mr Darvall and later against the solicitors. Each proceeding was an action for negligence alone and was therefore based on common law.
The solicitors and Mr Darvall sought prerogative relief, contending that the Federal Court had jurisdiction in the proceedings against them only if s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) and s 9(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) were valid and that those provisions were invalid. Underlying the claims of the applicants for prerogative relief was the assumption that Mr Wakim's claims against the solicitors and Mr Darvall were distinct from, and unrelated to, his claims against the Official Trustee.
In their joint judgment Gummow and Hayne JJ reviewed such cases as Philip Morris, Fencott and Stack. Their Honours noted that the pleadings of Mr Wakim's three proceedings did not allege that any of the claims was dependent on any of the others. Their Honours did not think that it was conclusive against Mr Wakim that he had not advanced the two claims based on the common law cause of action of negligence in his proceeding, based on a clearly federal claim, against the Official Trustee. Rather, the question which their Honours posed for themselves was simply whether all three claims arose out of "a single justiciable controversy". If they did, the Federal Court had jurisdiction in the whole matter including the two common law claims. Their Honours perceived the "central task" as being "to identify the justiciable controversy".
In these notes on certain important aspects of practice in the Federal Court, it does not seem appropriate for me to say much more than that their Honours resolved the question which they posed for themselves in favour of Mr Wakim. They noted that the three cases arose out of the one set of events and that the damage which Mr Wakim alleged he had suffered as a result of what he said were the various breaches of duty by the Official Trustee, the solicitors and Mr Darvall was, in each case, the same, that is, the loss of what he might have recovered in Mr Nader's bankruptcy if the Official Trustee had prosecuted the claims against Mrs Nader differently. Their Honours said:
"There is, then, but a single claim for damages that he seeks to pursue against each of the parties he has sued and judgment and recovery against one will diminish the amount that may be recovered from the others. There is, in these circumstances, that common substratum of facts in each proceeding of which Mason J spoke in Philip Morris [(1981) 148 CLR 457 at 512. See also Fencott (1983) 152 CLR 570 at 604-605 per Mason, Murphy, Brennan and Deane JJ.]" (at par 147).
The final matter to note from their Honours' judgment is that they said of statements in certain earlier cases that the exercise of the "accrued" jurisdiction is "discretionary":
"It may be that the better view is that the references to 'discretion' are not intended to convey more than that difficult questions of fact and degree will arise in such issues – questions about which reasonable minds may well differ. It is, however, not necessary to decide what is meant by the references to discretion in this context." (at par 149)
Gleeson CJ and Gaudron J expressed agreement with Gummow and Hayne JJ. McHugh J agreed that the claims by the solicitors and Mr Darvall for prerogative relief should be dismissed but gave his own and different reasons for reaching that conclusion. His Honour said that he was "sceptical as to whether there [was] a single controversy in [the] matter" but noted that there would ordinarily be a single controversy, and therefore a "matter" for the purposes of Ch III of the Constitution, if all the claims arose out of "a common substratum of facts". His Honour thought that it was premature to say that the three claims did not arise out of a common substratum facts and that therefore the applications for prerogative relief should be dismissed as premature.
Callinan J thought, applying the test propounded in Stack of "impression and practical judgment" that there was not "one justiciable controversy". His Honour referred to the absence of any attempt to join any party as a third party in Mr Wakim's proceeding against the Official Trustee, the different nature of the claims made against the various defendants and the fact that there were three separate proceedings of which two contained claims of an entirely non-federal nature.
Kirby J, who dissented on the question of the validity of the cross-vesting legislation in any event, had no difficulty, of course, in holding that Mr Wakim's proceedings against the solicitors and Mr Darvall were within the jurisdiction of the Federal Court and did not need to rely on the Court's accrued jurisdiction to reach that conclusion.
In sum, four of the six Judges who addressed the question of the accrued jurisdiction of the Federal Court may be said to have understood the notion in a fairly "liberal" or "expansive" sense.
My colleague, Justice Sackville, recently examined "The re-emergence of federal jurisdiction in Australia" at (2001) 21 Australian Bar Review 133, and, after examining Wakim and subsequent decisions, concluded, inter alia, that "[n]ot withstanding the triumph of the dualist theory of Australian federalism, the post-Wakim jurisdiction of the Federal Court, subject to any statutory limitations, is broader than many have assumed" (at 150).
COMMENCEMENT OF PROCEEDINGS
This subject is dealt with in O 4 of the Court's Rules. Order 4 r 1 provides that except as otherwise provided in the Rules, all proceedings in the Court's original jurisdiction shall be commenced by filing an application which is to be in or substantially in the form numbered 5 in the First Schedule to the Rules. A copy of Form 5 is annexed to these notes. At the Seminar I will discuss parts of Form 5 which are often not properly completed.
Some special classes of proceedings are commenced otherwise than by Form 5. For example, an application under the Administrative Decisions (Judicial Review) Act 1977 is made in accordance with Form 55 (see O54 r1) and an application under the Corporations Act 2001 is made in the form of the "originating process" or "interlocutory process" found in Forms 2 and 3, respectively, in Schedule 1 to the Federal Court (Corporations) Rules 2000 (see rule 2.2 of those Rules).
AFFIDAVITS
This subject is dealt with in O 14 of the Court's Rules. There are two classes of legal requirements with which affidavits frequently do not comply. First, there are the formal requirements of the Rules. Second, there are the requirements of the law of evidence, now, in particular, of the Evidence Act 1995 (Cth). In these notes I am concerned only with the former.
Order 14 r2(2A) is frequently not complied with. It states:
"Each page of an affidavit, including any annexure, must be numbered legibly and distinctively, beginning on the first page of the affidavit with the numeral '1'."
In an affidavit of even modest volume, great inconvenience can be caused by the absence of pagination. Frequently documents bear different page numbers, indicating that they have been a part of differing numerical sequences. For example, take a 10 page deed, a copy of which is annexed to an affidavit. Page 7 of the deed may be page 40 of the affidavit and thus part of two numerical sequences. The copy deed may also bear a discovery number and so be part of a third numerical sequence. If it has been taken from an earlier appeal book, it will be part of a fourth numerical sequence. Obviously it is important that an affidavit's system of pagination should be clear. Accordingly, the affidavit page numbers should appear in a distinctive form and at the same location on each page.
In addition to pagination, each annexure to an affidavit must be identified sequentially on the first page of the annexure by a letter of the alphabet or by the initials of the deponent followed by a number (O14 r2(2B)).
Some solicitors are most efficient and helpful: they include in the body of the affidavit next to a reference to an annexure, a reference to the pages occupied by that annexure, eg "annexed and marked "A" [pp 23-24] is a copy of a letter ... ".
Another requirement of the Rules which is frequently not complied with is the requirement that the full name of the deponent and the date of swearing must appear on the first visible page of the affidavit: O14 r2(2C). When a Judge has to locate one affidavit amongst many, it is important that he or she be able to see at a glance the name of the deponent and the date of the affidavit.
The distinction between exhibits and annexures in the Federal Court is largely one of practical exigency: if the annexure is too bulky to be conveniently annexed, it should be exhibited. However, I say "largely" because the Rules require that "[a]ny original document to be used in conjunction with an affidavit" be exhibited and not annexed: O14 r4(1).
DISCOVERY
This topic is the subject of O 15 of the Court's Rules. Order 15 has been amended to abandon the Peruvian Guano test (see Companie Financière et Commerciale du Pacifique v The Peruvian Guano Co [1883] UKLawRpKQB 95; (1882) 11 QBD 55) in favour of a test of "direct relevance". To the same end, Practice Note 14 has been amended. Order 15 rr 1 and 2 and Practice Note 14 are as follows:
"1 After a directions hearing pursuant to Order 10 and within any period limited by the Court for this purpose, any party may, unless the Court otherwise orders, by notice for discovery, in accordance with Form 21, filed and served on any other party, require any other party to give discovery of documents.
2(1) A party required to give discovery must do so within the time specified in the notice of discovery (not being less than 14 days after service of the notice of discovery on the party), or within such time as the Court or a Judge directs.
2(2) A party must give discovery by filing and serving:
(a) a list of documents required to be disclosed; and
(b) an affidavit verifying the list.
2(3) Without limiting rule 3 or 7, the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given:
(a) documents on which the party relies; and
(b) documents that adversely affect the party's own case; and
(c) documents that adversely affect another party's case; and
(d) documents that support another party's case; and
(e) documents that the party is required by a relevant practice direction to disclose.
2(4) However, a document is not required to be disclosed if the party giving discovery reasonably believes that the document is already in the possession, custody or control of the party to whom discovery is given.
2(5) In making a reasonable search for subrule (3), a party may take into account:
(a) the nature and complexity of the proceedings; and
(b) the number of documents involved; and
(c) the ease and cost of retrieving a document; and
(d) the significance of any document likely to be found; and
(e) any other relevant matter.
2(6) If the party does not search for a category or class of document, the party must include in the list of documents a statement of the category or class of document not searched for and the reason why."
"Practice Note No
14
DISCOVERY
(ii) can those purposes be achieved:
(iii) particularly in cases where there are many documents, should discovery be given in stages, eg initially on a limited basis, with liberty to apply later for particular discovery or discovery on a broader basis?
(iv) should discovery be given in the list of documents by general description rather than by identification of individual documents?
I will elaborate on these recent changes at the Seminar.
COURT APPOINTED EXPERT ASSISTANT
Order 34B allows for the appointment of a Court Appointed Expert Assistant. It is as follows:
"ORDER 34B - EXPERT ASSISTANT
2(1) The Court or a Judge may, at any stage of a proceeding and with the consent of the parties, appoint an expert as an expert assistant to assist the Court on any issue of fact or opinion identified by the Court or Judge (other than an issue involving a question of law) in the proceeding.
2(2) A person who has given evidence, or whom a party intends to call to give evidence, in the proceeding must not be appointed as an expert assistant in the proceeding.
2(3) For this rule, expert means a person who has specialised knowledge based on the person's training, study or experience.
3(1) An expert assistant in a proceeding must give the Court a written report on the issues identified by the Court or Judge only.
3(2) However, at the direction of the Court or a Judge and with the consent of the parties, the expert assistant may assist the Court by making other comments in the report.
3(3) The expert assistant must:
(a) state in the report each issue identified by the Court or Judge; and
(b) give a copy of the report to each party.
3(4) The Court must give each party a reasonable opportunity to comment on the report and may allow a party to adduce evidence, or further evidence, in relation to an issue identified, but not to examine or cross-examine the expert assistant.
3(5) A party must not communicate, directly or indirectly, with the expert assistant about any issue to be reported on, without the leave of the Court or a Judge.
3(6) The expert assistant must not give evidence in the proceeding.
4 The Court may make an order for the payment of an amount for the reasonable remuneration and expenses of an expert assistant, including an order that the amount be paid by 2 or more parties jointly."
At the Seminar, I will discuss the relationship between Order 34B and existing orders 34 and 34A.
THE INDIVIDUAL DOCKET SYSTEM
The introduction of the Individual Docket System in 1997 represented a change in the internal administration of the Court. Instead of a "central" allocation of cases to Judges for hearing as previously, they are allocated randomly upon filing of the originating process. This means that from that moment a case forms part of a particular Judge's "docket".
Under the former system, one or more Judges would conduct the directions hearings in a case but there would be no connection between that process and the central allocation of the case to a Judge for final hearing. This meant that the Judge hearing the case finally would have had no involvement in it prior to that time.
A major advantage of the Individual Docket System is that the Judge who will hear a case finally also conducts the directions hearings and so becomes familiar with the case. If a Judge is to conduct a final hearing, it makes sense for that Judge to devote time to becoming familiar with the case from the beginning. If a Judge conducting a directions hearing has no expectation of hearing the case finally, a real question arises whether it is an efficient use of limited judicial time for that Judge to devote much time in becoming familiar with the case for the purpose only of one or two directions hearings.
There is no doubt that a case can be made against as well as for the Individual Docket System. I have heard it suggested that a litigant may think that a Judge who has given a decision adverse to that litigant at any interlocutory stage, may be biased against him or her on the final hearing. While the giving of the earlier adverse decision would clearly not be a ground of disqualification for reasonable apprehension of bias, this does not mean that such a perception, if it exists, should be ignored. I would be interested to know from participants at the Seminar whether any clients of theirs have expressed a sense of grievance along the lines mentioned.
Other arguments made against the Individual Docket System are that it may mean that an interlocutory hearing which is urgently needed cannot take place because the Docket Judge happens to be over-burdened at the time. Arrangements are in place to overcome this problem.
Another argument that is put against the system is that practitioners who specialise in a particular area, no longer have the benefit of the "specialist list" system in which all of their cases would be listed on the one day before the same Judge with whose requirements they were familiar.
All things considered, I think that the advantages of the "new" System outweigh its disadvantages but I would be interested to have comments from practitioners.
STRIKING OUT, SUMMARY JUDGMENT AND SUMMARY DISMISSAL
Order 11 is headed "PLEADINGS". Order 1 r4 provides:
"pleading includes a statement of claim and a cross-claim to which Order 5 applies and subsequent pleadings, but does not include an application, notice of motion or affidavit;"
It follows that O11 r16 which provides for the striking out of pleadings does not apply to a process by which relief is sought or an affidavit. Order 11 r 16 is as follows:
"16. Where a pleading –
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out."
It is important to understand that O11 r16 is directed to the terms of a document, commonly a statement of claim. The power given by O11 r16 is not a power to dismiss a "proceeding". Accordingly, if the Court orders that even the whole of a statement of claim be struck out, the application and the proceeding itself remain on foot. Commonly the Court orders that the whole or part of a statement be struck out, with leave to the applicant to file an amended statement of claim. It is a sound general approach to an application to strike out a pleading to think that evidence is irrelevant to it and that it is in the nature of a demurrer (I can imagine a rare case in which evidence might be admissible, for example, evidence of background facts to counter a suggestion that a term used in a statement of claim was embarrassing because it was ambiguous).
Order 20 is headed "SUMMARY DISPOSAL AND STAY OF PROCEEDINGS". Order 20 r 1 permits summary judgment on an applicant's claim for relief and O20 r2 permits summary dismissal. Unlike O11 r16, these provisions are concerned not merely with pleadings but with the substance of proceedings. Order 20 r 1 (1) is as follows:
"1 (1) Where, in relation to the whole or any part of the applicant's claim for relief, there is evidence of the facts on which the claim or part is based, and –
(a) there is evidence given by the applicant or by some responsible person that, in the belief of the person giving the evidence, the respondent has no defence to the claim or part; or
(b) the respondent's defence discloses no answer to the applicant's claim
or part;
(c) [repealed]
the applicant may move on notice for such judgment for the applicant on that claim or part and the Court may pronounce such judgment and make such orders as the nature of the case requires."
Order 20 r2 is as follows:
"2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –
(a) no reasonable cause of action is disclosed;
(b) the
proceeding is frivolous or vexatious; or
(c) the proceeding is an
abuse of the process of the Court,
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1)."
Pincus J held in Warea Pty Ltd v Waterloo Industries Pty Ltd (1986) 12 FCR 152 that the expression in O20 r1(1) "there is evidence of the facts on which the claim ... is based" excludes the possibility of hearsay evidence. But in Multi Modal Ltd v Polakow (1987) 78 ALR 553, French J admitted hearsay evidence on a motion for summary judgment under O20 r1(1)(c), that is, on the ground that the respondent was in default of appearance, distinguishing Warea on the basis that the respondent had not appeared to dispute the evidence before him.
There is, with respect, much to commend the view that at least a contested motion for summary judgment is not an "interlocutory proceeding" within s 75 of the Evidence Act 1995 (Cth) and that the hearing of it is not an "interlocutory hearing" within O33 r2 of the Federal Court Rules, both of which permit the admission of hearsay evidence.
It can scarcely be questioned that a judgment or order made on a motion for summary judgment is a final judgment or order rather than an interlocutory one for the purpose of appeal rights, because it finally disposes of the rights of the parties (see below).
In the case of a motion for summary dismissal under O20 r2, there is a strong line of authority to the effect that an order for summary dismissal under the provision is interlocutory rather than final for the purpose of appeal rights: see Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326 especially at 1328; Hall v Nominal Defendant, [1966] HCA 36; (1966) 117 CLR 423 at 440 (Taylor J) and the English cases there referred to; Tampion v Anderson (1973) 48 ALJR 1 at 12; Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1 (CA) at 11 (Handley and Cripps JJA with whom Kirby P agreed). Port of Melbourne Authority v Anshun Pty Ltd [1980] HCA 41; (1980) 147 CLR 35 is distinguishable. That was a case of a permanent stay based on the abuse of process ground founded upon an estoppel arising from a special form of res judicata. In that case, the order, although made on an interlocutory application, was held to be a final order for the purpose of appeal rights because it finally disposed of the rights of the parties.
The authorities were comprehensively reviewed by the Victorian Court of Appeal in Little v State of Victoria [1998] 4 VR 596 in which it was held that an order dismissing a proceeding summarily because no reasonable cause of action was disclosed was both an interlocutory order and "an order in an interlocutory application" for the purpose of s 17A(4)(b) of the Supreme Court Act 1986 (Vic), with the consequence that an appeal brought without leave was dismissed as incompetent.
Is hearsay evidence admissible on the hearing of a motion for summary dismissal? It may be thought that the fact that an order for summary dismissal is interlocutory signifies that the hearing is also interlocutory, but this is not necessarily so: it has been recognised that the terms "final" and "interlocutory" may mean different things in different contexts: see Salter Rex & Co v Ghosh [1971] 2 QB 597 (CA) at 600-601; Tampion v Anderson, above, at 12-13; Malouf v Malouf [1999] FCA 284; (1999) 86 FCR 134 (Beaumont, Lee and Dowsett JJ) at para 33. I referred to the present issue in Collex Waste Management Pty Ltd v Waste Recycling & Processing Service of New South Wales [1999] FCA 787 at pars 23-28 but did not find it necessary to resolve it.
It is well established that an order for summary dismissal which, of course, deprives an applicant of a final hearing, must not be made unless the case for summary dismissal is very clear: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 (Dixon J); General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at 128-129 (Barwick CJ); Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 especially at 602-603 (Mason CJ, Deane and Dawson JJ); Walton v Gardiner (1993) 177 CLR 378 at 392-393 (Mason CJ, Deane and Dawson JJ). When an originating process is served, it is not uncommon for the party served to perceive the claim made as immeritorious and, indeed, as doomed to fail. But that person's legal adviser should not be too ready to suggest a motion for summary dismissal.
THE ENTERING OF JUDGMENTS AND ORDERS
A litigant who obtains a favourable judgment or order is well advised to seek to have it entered as soon as possible. The reason is that the grounds on which a judgment or order may be varied or set aside after it has been entered are less extensive than those on which it may be varied or set aside prior to entry.
Order 36 r 1 provides that a party desiring to enter an order shall lodge a draft of the order with the Registrar. It seems that any party is entitled to lodge the draft: cf Arcidiacono v Thiess Bros Pty Ltd [1975] 1 NSWLR 678.
Order 35 r7 provides as follows:
"7(1) The Court may vary or set aside a judgment or order before it has
been
entered.
(2) 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; or
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order was made consents.
(3) A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court.
(4) Sub-rule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order."
Sometimes after a judgment or order has been pronounced in Court and the reasons for it are published, a disappointed party may wish to seek leave to be heard further with a view to overcoming it or a disappointing aspect of it. The Rules do not limit the grounds on which the Court may vary or set aside a judgment or order before it has been entered, although the discretion is a judicial one and case law indicates principles in accordance with which the discretion is to be exercised. But O35 r7(2) set out above limits significantly the grounds on which a judgment or order may be varied or set aside after entry.
USUAL UNDERTAKING AS TO DAMAGES
The Court's form of usual undertaking as to damages is found in Practice Note No 3. The former Practice Note No 3, as substituted on 14 June 1999, appears below. I will discuss the differences between the new and the old forms of usual undertaking as to damages at the Seminar.
"Practice Note No. 3
Usual Undertaking as to Damages
The 'usual undertaking as to damages' if given to the Court in relation to any interlocutory order made by it or any interlocutory undertaking given to it, is an undertaking:
(a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and
(b) to pay the compensation referred to in (a) to the person there referred to.
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M E J Black
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Chief Justice
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14 June 1999"
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OTHER MATTERS
"(1) A Judge may make an order in accordance with the terms of a written consent of the parties to a proceeding, or their representatives on the record, by initialling or otherwise annotating the written consent and placing it on the Court file.
(2) The order must state that it is made by consent.
(3) The order is of the same force and validity as if it had been made after a hearing by the Judge."
I will discuss this at the seminar.
(Order 4, rule 1)
(Specify briefly the nature of the subject of the application or cross-claim and the legislative basis of the court's jurisdiction to hear it and grant the relief sought. Note: This statement does not form part of the pleading.)
A. DETAILS OF CLAIM
On the grounds stated in the accompanying affidavit or statement of claim (or, if applicable, Claim of Unlawful Termination of Employment in accordance with Form 5A), the applicant claims:
B. CLAIM FOR INTERLOCUTORY RELIEF
(Complete this section if you wish to claim interlocutory relief)
AND the applicant claims by way of interlocutory relief:
Date: eg, 7 May 19
(signed, applicant or applicant's solicitor)
C. NOTICE TO RESPONDENT
(Complete this section if there is a
respondent)
TO the respondent of (insert address):
This application has been set down for the time and place stated below. If you or your legal representative do not attend the Court at that time, the application may be dealt with and judgment may be given, or an order made, in your absence. As soon after the time mentioned as the business of the Court will allow, any of the following may happen:
(a) the application may be heard;
(b) directions may be given for the further conduct of the proceeding;
(c) any application for interlocutory relief may be heard.
Before any attendance at Court, you must file an appearance in the Registry.
Time and date for hearing: (to be entered by Registry unless fixed by Court)
Place: (address of Court)
D. ABRIDGMENT OF SERVICE
(Complete this section if the time for
service has been abridged)
The time by which this application is to be served has been abridged by order made on (insert date) to (insert time and date).
Date: eg, 7 May 19
(signed, Registrar)
E. FILING AND SERVICE
This application is filed by (insert
name) for (insert name) whose address for service is (insert
address).
The applicant's address is (if the applicant is an individual, specify place of residence or business; if the applicant is a corporation, specify principal place of business).
It is not intended to serve this application on any person.
OR
It is intended to serve this application on each person listed
below:
(insert name of each person on whom application is to be served)
Version 1
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URL: http://www.austlii.edu.au/au/journals/FedJSchol/2001/9.html