FEDERAL COURT OF AUSTRALIA

Von Reisner v Commonwealth (No 3) [2008] FCA 1028

PRACTICE AND PROCEDURE – slip rule – intention of the Court

Federal Court Rules 1979 (Cth), O 35, r 7

Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 followed

Todorovic v Moussa [2001] NSWCA 419, 53 NSWLR 463 followed

Von Reisner v Commonwealth [2007] FCA 1959 cited

Von Reisner v Commonwealth (No 2) [2008] FCA 430 cited

KOIDU VON REISNER AND ANOR v COMMONWEALTH OF AUSTRALIA AND ANOR

NSD 1540 OF 2007

FLICK J

8 JULY 2008

SYDNEY

THE ORDERS OF THE COURT ARE:

1.       Order 1 as made on 30 November 2007 be varied as follows:

“1.   The Statement of Claim as filed on 7 August 2007, as against the First Respondent, be struck out.”

2.       Order 2 as made on 30 November 2007 be varied as follows:

“2.   The Statement of Claim as filed on 7 August 2007, as against the Second Respondent, be struck out.”

3.       Order 1 as made on 31 March 2008 be varied as follows:

“1.   The proceeding be dismissed as against both Respondents.”

4.         There be no order as to the costs of 7 July 2008.

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

REASONS FOR JUDGMENT

1                     Two previous decisions have been given in this matter — the first on 30 November 2007 (Von Reisner v Commonwealth [2007] FCA 1959) and the second on 31 March 2008 (Von Reisner v Commonwealth (No 2) [2008] FCA 430).

2                     On 30 November 2007 the orders then made were as follows:

1.          The Application and Statement of Claim as against the First Respondent be dismissed.

2.          The Application and Statement of Claim as against the Second Respondent be dismissed.

3.          Costs are reserved.

4.          Any Amended Application and any Amended Statement of Claim is to be filed and served by 5pm on 29 February 2008.

5.          The matter be stood over for mention at 9:30am on 10 March 2008.

Those orders have been entered.

3                     The orders as made on 31 March 2008 were as follows:

1.          The proceedings be dismissed as against both Respondents.

2.          The First Applicant is not to commence any proceedings in this Court without the prior leave of the Court, excluding any application to appeal or seeking leave to appeal from this decision.

3.          The Applicants to pay the costs of the First Respondent of and incidental to these proceedings, including any reserved costs.

4.          The Applicants to pay the costs of the Second Respondent of and incidental to these proceedings, including any reserved costs.

Those orders have not as yet been entered.

4                     The matter thereafter came before Branson J on 17 June 2008 when her Honour raised questions as to whether the orders previously made reflected “the intention of the Court”. Rather than the Full Court considering any order which did not truly reflect the intention of the Court, the opportunity was extended to the parties to have the form of the orders previously made further considered (if that was considered appropriate). That is now the application before the Court.

5                     Order 35, r 7(1) and (2)(e) provide as follows:

Setting aside

(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:

…

(e)        the order does not reflect the intention of the Court; or

…

In addition to such power as is conferred by Rule 7, the Court also has an implied power to vary an order: Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 at [27]–[29], 129 FCR 558 at 569–70 per Allsop J.

6                     Within the constraints imposed by that Rule, it is considered that Orders 1 and 2 as made on 30 November 2007 should be varied. Order 35, r 7(2) relevantly confers power where, as in respect to these orders, they have been entered and where an order “does not reflect the intention of the Court”. The intention of the Court was that the then form of the Statement of Claim should be struck out. The reasons for decision then given expressed reservation as to the utility of the Respondents’ Notice of Motion being heard in advance of further amendments being made, as contemplated by the Applicants. But the intent of the Court was that the Applicants were to file any Amended Statement of Claim in the same proceeding within the time then specified. The reservation expressed arose because the Applicants had not previously amended their pleadings and could do so unless the proceeding itself was dismissed: Federal Court Rules, O 13, r 3. The intention was not to foreclose the opportunity to be extended to the Applicants to amend the then existing Statement of Claim.

7                     Order 4 as made on 30 November 2007 contemplated an “Amended Application” also being filed. None was in fact filed — but the intention of the Court was to permit such an amendment to be made should the Applicants so have wished. That order reflected the intention of the Court and should thus not now be varied.

8                     Orders 1 and 2 as made on 30 November 2008 should be varied so as to remove such ambiguity as may otherwise have arisen.

9                     Insofar as the orders as made on 31 March 2008 are concerned, it was the intention of the Court to resolve “the proceedings generally”: [2008] FCA 430 at [8]. On that occasion there had been non-compliance with a previous order that any Amended Statement of Claim was to be filed by 29 February 2008. There was, however, before the Court on 31 March 2008 a draft document which the First Applicant accepted “reflected the principles which she wished to agitate”: [2008] FCA 430 at [5]. An order was made that the “proceedings be dismissed”. This order has not been entered and may be varied or set aside pursuant to O 35, r 7(1). This order should be varied — but only to the extent of referring to a singular “proceeding”. In seeking such an order, reliance was properly placed by the Respondents upon either s 31A of the Federal Court of Australia Act 1976 (Cth) or O 20, r 5 of the Federal Court Rules. Both of those provisions refer to an order being made in a “proceeding”. Order 20, r 5 was the power invoked. It was considered appropriate to dismiss the proceeding.

10                  Order 2 as made on that occasion, the Court has been told, has been the subject of leave being granted to appeal to the Full Court. It is thus inappropriate to revisit either the form of that order or whether such an order should have been made given the dismissal of the proceeding.

11                  The orders made on both occasions should be varied to reflect that which was intended. Whether such orders as now varied have been properly made remains a matter for the Full Court.

12                  In varying and setting aside these orders it must be acknowledged that there has been both an imprecision in the language previously employed in the reasons for decisions and the orders made. The reasons previously provided could also have been expressed in greater detail. But an application made pursuant to O 35, r 7 to vary or set aside orders previously made is not considered to be the occasion to supplement reasons previously provided or to make findings which could more conveniently have been made on earlier occasions. In a civil action there is a limited ability to alter reasons previously given, provided that the alteration is not one of substance: cf. Todorovic v Moussa [2001] NSWCA 419, 53 NSWLR 463 at 468–9 per Beazley JA (Powell JA and Sperling J agreeing). To supplement the reasons previously provided would not fall within that limited exception.

Orders

13                  The orders of the Court are:

1.       Order 1 as made on 30 November 2007 be varied as follows:

“1.   The Statement of Claim as filed on 7 August 2007, as against the First Respondent, be struck out.”

2.       Order 2 as made on 30 November 2007 be varied as follows:

“2.   The Statement of Claim as filed on 7 August 2007, as against the Second Respondent, be struck out.”

3.       Order 1 as made on 31 March 2008 be varied as follows:

“1.   The proceeding be dismissed as against both Respondents.”

4.         There be no order as to the costs of 7 July 2008.

Associate:

Dated:         8 July 2008