FEDERAL COURT OF AUSTRALIA

Blacker v National Australia Bank Ltd [2000] FCA 1011

PETER RAYMOND BLACKER & CHRISTINE BLACKER v

NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)

KATZ J

26 JULY 2000

SYDNEY

THE COURT ORDERS THAT:

The orders made on 8 June 2000 be varied by varying order 11 to read as follows:

“Orders 1 to 6 and 8 to 10 of these orders take effect at 19 June 2000.   Order 7 of these orders takes effect following the determination of Supreme Court Equity Proceedings Number 2676 of 2000.”

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 25 May 2000, I gave my reasons for judgment on the claim and cross-claim in this matter.   At that time, I invited the parties to put forward proposed minutes of order.  That was subsequently done and, on 8 June 2000, I made orders giving effect to my reasons for judgment, so far as concerned both the claim and the cross-claim.   There were ten orders of a substantive kind and an eleventh order, which was in the following terms: “These orders shall take effect at 19 June 2000”.

2                     Among the matters with which I dealt in my reasons for judgment of 25 May 2000 was the question of this Court’s jurisdiction to entertain a claim which had been made by the Blackers under the Contracts Review Act 1980 (NSW).   I reached the conclusion that the Court had no jurisdiction to deal with that claim.   However, in [29] of my reasons for judgment, I made plain my then understanding that the orders which I anticipated making on the claim and cross-claim would not prevent the Blackers from seeking to prosecute their claim under the Contracts Review Act in, in particular, the Supreme Court of New South Wales, which had jurisdiction with respect to such claims.

3                     The Blackers did afterwards make a claim under the Contracts Review Act in the Supreme Court of New South Wales and that claim is scheduled to be heard before his Honour Young J tomorrow and, I think, as well, the following day.

4                     An application has now been made to me by the Blackers that I should act under Order 35, par 7(2)(e) of the Federal Court Rules, which confers on the Court a power to vary or set aside a judgment or order after the order has been entered where the order does not reflect the intention of the Court.

5                     The occasion of that application is that the Blackers have recently received the written submissions to be propounded before Young J by the NAB.  Among those written submissions is the following:

“The contractual claims against which relief is being sought are now merged in the judgment and orders of the Federal Court entered following pronouncement of judgment in the Federal Court, see generally Fisher and Lightwood’s Law of Mortgage, Australian Edition, Butterworths, 1995, Chapter 36.   No contract relevantly remains upon which any relevant orders could operate in a manner appropriate to furnish relief under the Act.”

6                     Faced with that submission, the Blackers have made to me today the application which I have mentioned already.

7                     What is sought is that I should, in effect, suspend, until the conclusion of the Supreme Court proceedings, the operation of order 7 of the orders which I made on 8 June 2000.   Order 7 of those orders is in the following terms:  “Judgment for the respondent/cross claimant on the cross claim in the sum of $1,551,475.68”.   It is submitted on behalf of the Blackers that that order does not reflect the intention of the Court within the meaning of O 35, par 7(2)(e) of the Rules.  (Indeed, I think that submission is made in respect of all of the substantive orders which I made, although in the result the present application is concerned only with order 7.)

8                     The submission before me on behalf of the NAB, in effect adopting, I think, the way in which I put the matter to counsel for the NAB during argument, was that if one examined each and every one of the individual orders which I made on 8 June 2000, as to none of them individually could it be said that that particular order did not reflect my then intention.

9                     I have formed the view that I should take a more generous approach than the one which I have just mentioned to the notion of whether or not the orders which I made on 8 June 2000 reflect the intention of the Court within the meaning of O 35, par 7(2)(e) of the Rules.

10                  I therefore consider that, in the circumstances, it would be appropriate for me to accede to the application by the Blackers, so as to ensure that they are not prevented by the judgment of this Court on those claims with which it did deal from prosecuting their Contracts Review Act claim.   As I have already said, I did make plain, I consider, my intention that that should be the position in what I had to say at the conclusion of [29] of my reasons for judgment of 25 May 2000.

11                  Having said what I have already said, I need do nothing further than to vary the orders which I made on 8 June 2000 by varying order 11, so that it reads as follows:

“Orders 1 to 6 and 8 to 10 of these orders take effect at 19 June 2000.   Order 7 of these orders takes effect following the determination of Supreme Court Equity Proceedings Number 2676 of 2000.”

Associate:

Dated:              28 July 2000