Varying and Setting Aside Judgments and Orders

This paper addresses the exceptions to that general principle as it applies to superior courts, with specific reference to the inherent jurisdiction of the Court and the provisions of the Uniform Civil Procedure Rules 1999 (UCPR) which deal with the circumstances in which judgments and orders can be varied or set aside, other than by way of an appeal. The specific provisions of the UCPR which will be considered are those contained in rr.388, 667 and 668. These provisions are appropriately to be viewed as exceptions because each is informed by the overriding policy that, except in exceptional circumstances, to enable the Court to reopen judgments or permit them to be the subject of collateral challenge is inimical the promotion of justice and the proper administration of the law.⁵ Costs and delays would otherwise be compounded and the judicial system would become incapable of delivering certainty or finality in litigation. Moreover, to permit judgments or orders to be readily impugned in this way would lead to there being little purpose in a hierarchical judicial system of appeal courts.⁶  

Judgments and orders

It is necessary at the outset to define the terms “order” and “judgment” and to identify the context in which those terms will be referred to. Schedule D to the UCPR defines the term “order” as including a judgment, direction, decision or determination of a court whether final or otherwise. Rule 660 provides:

The Supreme Court Act 1995⁸ defines a “judgment” as including a decree. The definition of judgment in Schedule D to the UCPR refers back  to r.659. That rule states:

Importantly, r.661(3) provides that an order must be filed if the order is a judgment or another final order. The order is perfected by being filed in the registry. Between the time it is pronounced and the time it is filed, the order is provisionally effective in the respect that it remains open for the judge to recall it, but is to be treated as a subsisting order.⁹

It is important in the present context to emphasise the distinction between final and interlocutory orders. That distinction is important because, if the order is interlocutory, the aggrieved party may be able make a fresh application of the kind that has been dismissed or rejected by the relevant order, rather than applying to vary or set aside that order. This paper is principally concerned with varying or setting aside final orders, although the rules which are discussed below are not limited by their terms to final orders. For example, a clerical error or omission in an interlocutory order may be readily corrected under the slip rule contained in r.388.  

The distinction between orders that are final and orders that are interlocutory is not always easy to draw, and there is conflicting authority with respect to whether some particular orders are appropriately categorized as final or interlocutory. In Carr v Finance Corporation of Australia Ltd [No 1]¹⁰ Gibbs CJ said: “The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty”, and as observed by Kirby P in Southern Cross Exploration NL v. Fire & All Risks Insurance Co. Ltd. [No.2]¹¹: “no golden thread of logic runs through the cases”. The test in Australia has been settled by several decisions of the High Court, but in each case it is also necessary to have regard to any decisions concerning the particular order under consideration because there are certain categories of orders which have been recognised by the courts as being interlocutory which intuitively might appear to be final in nature.¹² The accepted test for determining whether an order is final or interlocutory is whether it finally determines all the rights of the parties in the principal cause between them having regard to the legal, rather than the practical effect of the order.¹³ Where the order is ancillary to the main proceeding (in the sense that it deals with a matter other than one which is the subject of the dispute in that proceeding), or if it is theoretically open for the applicant to make a fresh application, even if such an application might have very little prospect of success, the order is ordinarily treated as interlocutory.¹⁴  Some examples of orders which might appear at first blush to be final, but have been held to be interlocutory include:¹⁵

1. An order staying, striking out or dismissing a proceeding on the ground that it is scandalous, frivolous, vexatious or an abuse of process, or because it discloses no reasonable cause of action.¹⁶
2. A guillotine order dismissing a suit if no amendment is made to the statement of claim within a specified period.¹⁷
3. An order refusing an extension of time in which to sue.¹⁸
4. An order refusing to set aside a default judgment obtained on the failure of the defendant to file or deliver a defence.¹⁹

On the other hand, it has been held that a judgment of non-suit is a final judgment, notwithstanding that it leaves the plaintiff at liberty to bring another action for the same cause.²⁰

It is also necessary to distinguish a judgment or order from the reasons which may be given by a Court for making that judgment or order.  The distinction appears from r.663 UCPR. A judgment or order is the operative judicial act. It is the formal order made by a Court which disposes of, or deals with, the proceeding before the Court.²¹ Sometimes referred to loosely as the judgment, the reasons are strictly not part of the judgment or order, although they may furnish the Courts reasons for decision and may constitute a precedent.²² It is the judgment or order that it is binding upon parties and determinative of their legal rights, and it is that part of the Court’s pronouncement which, in appropriate cases, the successful party is entitled to enforce or execute.²³

As will be appreciated from what is said above, there are a number of preliminary questions requiring consideration concerning the character of the relevant order before any application to set aside or vary it is made.  It is then necessary to turn to the basis upon which a final order or judgment is susceptible of being varied or set aside.

Re-opening an order before it is perfected

Before dealing with the circumstances where an order may be varied or set aside after it has been perfected, it is relevant to note the provisions of  UCPR r.667(1), which provide that the Court may vary or set aside an order before the earlier of the filing of the order, or the end of 7 days after the making of the order. Although the rule is expressed in unlimited terms, the power to vary or set aside an order before it is perfected will not ordinarily be exercised to permit a general re-opening of the case,²⁴ or re-agitating arguments which have already been considered by the Court.²⁵ The power is exercised with great caution,²⁶ and ordinarily will only be exercised to correct an error or oversight or to effect a review of the proposed order so that the orders may be able to deal more appropriately with the issues as litigated by the parties.²⁷  

UCPR r.388 (the “slip rule”), discussed below, also applies to amending an order before it is perfected.  

Inherent jurisdiction of the Court

The first of the exceptions to the principle that once an order has been perfected it is beyond recall by the court derives from the inherent power of a superior court to control its own process. However, the extent to which that inherent power may be used by a court to vary its own orders after those orders have been perfected is not entirely settled, and to a large extent the inherent power is co-extensive with those rules of court which are discussed in more detail below. In Thynne v. Thynne²⁸ Morris LJ in the context of discussing the power to vary orders after they have been perfected, said:

The authorities supporting the existence and scope of this inherent power were discussed by Gibbs J. (as he then was) in his dissenting judgment in Bailey v Marinoff.²⁹ His Honour observed that the limits of the power remain undefined, although it would appear to arise in circumstances where justice required the Court to act, and would seem to be confined to exceptional cases where a mistake has occurred which, unrepaired, would cause a serious injustice.³⁰ The examples cited by his Honour included:³¹

(a) Varying an order to give effect to the meaning the court intended the order to have or to resolve an ambiguity.³² As will appear later, this power is substantially, if not entirely, co-extensive with the power under UCPR rr.388 and 667.

(b) Amending part of an order which is not “the operative and substantial part”.³³

(c) Reviewing an order made ex parte, the basis of which has been said to be natural justice.³⁴ Under this category can also be included denial of procedural fairness through no fault of a party.³⁵ This power is now reflected in UCPR r. 667 (2)(a) which provides that the court may set aside an order at any time if the order was made in the absence of a party.

(d) The occurrence of circumstances after the judgment which warrant the making of a supplemental order.³⁶ The precise scope of any such inherent power does not appear to be defined in the cases cited by Gibbs J. Indeed, the principal authority referred to by Gibbs J, Prestney v. Corporation of Colchester,³⁷ does not appear to support this as separate head of inherent power available to bring about a variation of a final order. In that case, after an order had been made for production of documents for inspection in the office of solicitors in London, it appeared more convenient that production of the documents should be made in Colchester, and an order to that effect was made, which had the effect of varying the previous order. However, the first order was clearly interlocutory, and this was expressly recognized in the judgment of Cotton LJ.³⁸

(e) Entertaining an application for extension of time for appealing against a guillotine the order dismissing the action and after the time for compliance with that order has expired.³⁹

The High Court of Australia, as an appeal court of last resort, has held that it also has inherent jurisdiction to vacate its own orders after they have been perfected in cases where there would otherwise be an irremediable injustice, but this power will only be exercised in exceptional circumstances having regard to the public interest in maintaining the finality of litigation.⁴⁰ However, there has been debate as to whether a Commonwealth or State intermediate appellate court has a similar inherent jurisdiction to make an order correcting mistakes omissions in its orders causing injustice, after an appeal has been heard and disposed of by that appeal court.⁴¹ In Taylor v Lawrence⁴² it was held that in exceptional circumstances, the Court of Appeal in England has an inherent jurisdiction, going beyond the power to correct slips and to set aside fraudulently obtained orders, to reopen an appeal after the judgment has been drawn up, in order to avoid real injustice. It was said that although the outcome of litigation should be final there was a need to temper that principle in exceptional circumstances.⁴³ In Taylor v Lawrence it was further said that the power is derived from the court’s necessary implicit powers to suppress abuses of its process and control its own practice. The Court of Appeal adopted the approach of Lord Diplock in Bremer Vulcan Schiffbau und Maschinenfabrik v South India Shipping Corp⁴⁴ that any court must have inherent power to do what is necessary “in order to maintain its character as a court of justice”, and that public confidence in the administration of justice made it necessary to reopen a case where significant injustice would otherwise result.

Apart from the dissenting judgments of Gibbs J in Bailey v Marinoff⁴⁵ and Kirby J in DJL v The Central Authority,⁴⁶ the argument that intermediate courts of appeal in Australia have a similar inherent jurisdiction has not been generally accepted.⁴⁷  

The slip rule

It has long been recognized that, as an exception to the principle that once perfected a judgment was beyond recall by the court in which it was pronounced, in the exercise of the court’s inherent jurisdiction, an error arising from an accidental slip or omission might be corrected at any time without an appeal.⁴⁸  Courts also have an inherent jurisdiction (or in the case of statutory courts, an implied jurisdiction)⁴⁹ to amend judgments which do not correctly state what was actually decided and intended. The “slip rule”, which is contained in UCPR r.388 together with r.667 are the legislative embodiments of that inherent jurisdiction.⁵⁰  Rule 388 UCPR materially provides:⁵¹

The provisions of rr 388 and 667 clearly supplement each other, and situations will regularly arise where either rule might apply. In Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd⁵²,Toohey J said:

On its face, the slip rule is confined to clerical mistakes resulting from an accidental slip or omission, but as will appear from what is said below, the rule has not been construed as limited to purely clerical mistakes. The rule applies irrespective of whether the judgment or order has been entered, and there is no time limit for applying under the slip rule to have a judgment or order corrected.⁵³ The court can act on its own initiative, and the power of the court can be exercised by a judge other than the judge who made the order or who pronounced the judgment.⁵⁴ Its primary purpose is akin to rectification, to allow the Court to amend a formal order which by accidental error does not reflect the actual decision of the judge, or to make an order which the judge did not make because of the accidental omission by counsel to ask for it.⁵⁵ Thus it extends to correcting errors or omissions brought about by inadvertence on the part of a party’s legal representative.⁵⁶ In Commonwealth v McCormack⁵⁷, for example, counsel for the Commonwealth had not been  instructed that an amount which the High Court had held could be set off by the Commonwealth against the amount owed to the plaintiff, had earlier been paid to the plaintiff.  The court held that there was jurisdiction under the slip rule to correct the judgment.⁵⁸  

However, an order is not made as a matter of course.  In Gould v Vaggelas⁵⁹ Gibbs CJ stated that the jurisdiction was to be exercised sparingly. The court has a discretion to refuse relief where events have occurred which make it inexpedient or inequitable for an order under the slip rule to be made,⁶⁰ and in Shaddock the High Court stressed the importance of making an application under the slip rule promptly.⁶¹ An order will not generally be made where the interests of third parties may be affected or a party has changed position in reliance upon the order.

The slip rule will generally only have application where the proposed amendment is one upon which no real difference of opinion can exist,⁶² and where it is clear beyond doubt that, if the error or omission had been brought to the attention of the judge when the order was made or judgment pronounced, the error or omission would have been immediately rectified. In Storey & Keers Pty. Ltd. v Johnstone⁶³ McHugh J.A. accepted the following passage from the speech Lord Herschell in Hatton v Harris⁶⁴ as laying down the test to be satisfied in making an order under the slip rule:

A similar test was applied in L. Shaddock & Associates Pty. Ltd. v Parramatta City Council (No. 2),⁶⁵ where the court said:

Essentially rectification of the order is viewed as nothing more than a mechanical task. It does not apply where the amendment is controversial, nor does it extend to mistakes that are the consequence of a deliberate decision by the parties in the conduct of the litigation.⁶⁷ In England it has been emphasized in a number of recent cases that the purpose of the slip rule is confined to accidental errors, and is not to enable the Court to have second thoughts.⁶⁸ In R v Cripps, Ex parte Muldoon⁶⁹ Donaldson M.R said: “…it can not be overemphasized that the slip rule power can never entitle the trial judge or a court to reconsider a final and regular decision once it has been perfected”. Essentially, the same approach was taken by Asche CJ the Northern Territory Supreme Court in The Strand Nominees Pty Ltd v. Pennywise Smart Shopping Australia Pty Ltd.⁷⁰ There is a distinction between having second thoughts or intentions and correcting an award or judgment to give true effect to first thoughts or intentions. In Storey & Keers Pty Ltd v Johnstone,⁷¹ McHugh JA expressed the view that the error or omission was not within the slip rule if the amendment called for the exercise of an independent discretion or is a matter upon which real difference of opinion exists.

The circumstances in which the slip rule has been applied are numerous and varied. Some examples of corrections made to judgments or orders under the slip rule include:

(1)    where a party has been wrongly named or has been misdescribed,⁷² or is shown to have died or to be non-existent;⁷³
(2)    to correct an order for costs;⁷⁴
(3)    oversight by counsel to ask for interest or costs;⁷⁵
(4)    to correct the calculation of an award of damages;⁷⁶
(5)    to remedy a mistaken belief that the parties had agreed on aspects of quantum;⁷⁷
(6)    to correct the calculation of interest or to award interest.⁷⁸

More controversially, in Elyard Corporation Pty Limited v. DDB Needham Sydney Pty Ltd⁷⁹ the Full Federal Court (Black CJ, Lockhart and Lindgren JJ) considered whether the slip rule could be relied upon to vary an order nunc pro tunc so as to extend the time within which an application for winding up could be determined. The question which arose was whether s. 459R of the Corporations Law prevented the judge varying the order in reliance on the slip rule. Section 459R provided that an application for a company to be wound up in insolvency was to be determined within 6 months after it is made. Under subsection (2), the Court could extend the period within which an application was to be determined, but only if the extension order was made within the 6 month period after the application was made. Subsection (3) operated to bring about dismissal of a winding up application where the time for determining the application expired. Counsel for the applicant had omitted to seek an extension of the period when the matter had come before a registrar during the 6 month period following the application being filed. At first instance, Sheppard J. held that the slip rule was available to correct the error even though the 6 month period had by then expired. His decision was upheld by the Full Court on appeal.⁸⁰

In relation to the costs of an application to correct errors under the slip rule, ordinarily no order as to costs is made.  In Goode v Thompson and Suncorp Metway Insurance Limited⁸¹ the Queensland Court of Appeal ordered the appellant pay its own costs of an appeal where the error in the judgment was capable of correction under the slip rule rather than by institution of an appeal.

Setting orders aside on the ground of fraud

Rule 667(2)(b) provides that the court may set aside an order at any time if the order was obtained by fraud.⁸²  The leading Australian authority on setting aside an order or judgment obtained by fraud is Cabassi v Vila,⁸³ where Williams J. observed that such a judgment is “tainted and vitiated throughout”, and “if the fraud is clearly proved, the party defrauded is entitled to have the judgment set aside…”⁸⁴ The order or judgment is a nullity.⁸⁵

The jurisdiction to impeach judgments for fraud has its origins in equity. In DJL v The Central Authority⁸⁶ Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed:

“The Court of Chancery also had had jurisdiction to enjoin, by a species of common injunction, the enforcement of judgments fraudulently obtained, including those recovered in the common law courts, or to oblige the holder of such a judgment to enter satisfaction of it upon the judgment roll of the common law court. The exercise of this jurisdiction involved the institution of a separate proceeding.”

The appropriate procedure is normally to commence a fresh proceeding,⁸⁷ and in that proceeding, the only issue is the alleged fraud.⁸⁸ However,the rule that it must be raised by a separate proceeding is not inflexible.⁸⁹ In some circumstances, the Court will entertain a claim to set aside a judgment said to be procured by fraud in the action in which the judgment was obtained.  Fraud can also be raised on an appeal from the judgment.⁹⁰ It appears that the reason why courts had formerly insisted upon the bringing of a separate action was to ensure that the charge of fraud was properly particularised in that action.

Rule 667(2) confers power upon the Court, not exercising the appellate jurisdiction, to set aside a judgment, and appears to contemplate an application to set aside a judgment obtained by fraud may be made in the same proceeding in which the judgment was entered.

Whether the fraud is raised by way of a separate proceeding or in the proceeding in which the order has been made, it must be properly particularized and must be established by strict proof to the standard referred to in Briginshaw v Briginshaw.⁹¹ The matters which must be established to impugn an order on the basis of fraud were summarised by Kirby P (with whom Hope JA and Samuels JA agreed) in Wentworth v Rogers (No 5)⁹² as follows:

“First, the essence of the action is fraud and particulars of the fraud claimed must be exactly given and the allegations established by the strict proof which such a charge requires…

Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment..^.93

Thirdly, mere suspicion of fraud raised by fresh facts later discovered will not be sufficient to secure relief… The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed…

Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud and although there may be exceptional cases where such proof of perjury would suffice, without more to warrant relief of this kind, the mere allegation or even the proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment.⁹⁴

Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge…⁹⁵

The leading Queensland decision is Boughen v Abel.⁹⁶

In relation to the second of the requirements identified in Wentworth, there has been debate as to whether, in addition, it is necessary to establish that the fresh evidence was not reasonably discoverable before the judgment was given. The authorities in support of that requirement include Owens Bank Ltd v Etoile Commerciale SA,⁹⁷ Owens Bank Ltd v Bracco⁹⁸ and Monroe Schneider Associates (Inc) v No 1 Raverem (No 2.).⁹⁹ On the other hand, in McDonald v McDonald¹⁰⁰ the High Court distinguished between the position where a new trial was sought on the ground of discovery of fresh evidence and one where a verdict was obtained by fraud. Barwick CJ (with whom Kitto J agreed)¹⁰¹ and  Menzies J¹⁰² each rejected the additional requirement of due diligence in the case of fraud. Menzies J¹⁰³ expressly rejected as too narrow, a formulation of the elements which needed to be established by the claimant, including the requirement of due diligence, contained in the article by D.M. Gordon QC, “Fraud or New Evidence as Grounds for Actions to set aside Judgments”.¹⁰⁴ In  Toubia v Schwenke,¹⁰⁵ the New South Wales Court of Appeal (Handley JA with whom Heydon and Hodgson JJA agreed) preferred the view of Menzies J in McDonald v McDonald that the party alleging fraud is not required to prove that the evidence could not have been discovered by the exercise of due diligence. The reasoning of his Honour was:¹⁰⁶ “Contributory negligence is not a defence to an action for fraud whether the relief claimed is rescission or damages. As Brennan CJ said in Gould v Vaggelas (1995) 157 CLR 215 at 252: ‘A knave does not escape liability because he is dealing with a fool’.”  The view of Handley JA appears, with respect, to reflect the current state of the law in Australia, however, in England, following the Owens Bank cases, there appears to be a requirement that the party seeking to set aside a judgment on the ground of fraud must show that the fresh evidence upon which the application is based could not have been obtained before the judgment by the exercise of due diligence.

In Carter v Rosedale Sawmill¹⁰⁷ Pincus JA suggested that there may be a different test applied when  the issue of fraud is raised on an appeal, as opposed to the position where the same issue is raised in separate proceedings to impeach the judgment for fraud. His Honour considered that a close examination of the judgments in McDonald v. McDonald imply that it is only in a case of a separate action to impeach the judgment for fraud, that it is essential that the claimant prove that the judgment was obtained by fraud and that in an appeal alleging fraud such proof is unnecessary. The distinction between judgments obtained by perjury and those obtained by other kinds of fraud was also questioned by Pincus JA in Carter v Rosedale Sawmill, where his Honour, after observing that such a distinction was difficult to justify either logically or practically, said: “…one can hardly conceive of a judgment obtained in a contested hearing being obtained by fraud where the fraud does not involve perjury.”

Fresh evidence

If a trial has been regularly conducted,¹⁰⁸ a new trial will not be granted on the basis of fresh evidence unless, first, that evidence could not have been discovered by the exercise of reasonable diligence before judgment in the trial and, secondly, the evidence is of such probative value and cogency that, when taken with the evidence already adduced at the trial, it will in all probability be decisive of the issues. If those two criteria are satisfied, a court may order a new trial in the interests of justice.¹⁰⁹ These principles now find expression in r.668 of the UCPR, which provides:

As in the case of other exceptions to the general principle that once perfected a final order is beyond recall by the Court in which it was pronounced, the power conferred by r.668 is interpreted and applied subject to the policy of finality in litigation. As was stated by Mason CJ in Autodesk Inc. v Dyason (No.2),¹¹⁰ the purpose of the power is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases. Furthermore, it would be unfair to deprive a successful party of the fruits of victory where some relevant evidence had, without fault on the part of that party, been unavailable at the time of the trial. For these reasons, where the trial has been regularly conducted, the fresh evidence must be highly probative. Indeed, r.668(1)(b) requires that the facts be such that they “…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”, which might suggest an even more rigorous test than that expressed by Barwick CJ in McDonald v McDonald that: “it will in all probability be decisive”.¹¹¹ However, the difference may not be one of substance. The test has been the subject of various formulations, which vary in minor degree. For example, in Council of the City of Greater Wollongong Corporation v Cowan,¹¹² Dixon CJ (with whom Williams, Webb, Kitto and Taylor JJ agreed) formulated the cogency test as follows:

In the Queensland Court of Appeal, Pincus JA in Carter v Rosedale Sawmill,¹¹³ referring to Commonwealth Bank v. Quade,¹¹⁴ stated the test as requiring that: “…it is reasonably clear that the fresh evidence would have produced an opposite verdict.”¹¹⁵

What has been said about the cogency of the evidence, however, may not be applied with the same rigour in circumstances where the trial has not been regularly conducted as, for example, where the successful party to the litigation did not comply with the obligation to discover documents which were relevant to the issues in the trial. In such circumstances another aspect of the proper administration of justice must be considered namely, the public interest in preservation of the integrity of the courts’ processes. That process is likely to be undermined if litigants believe that a party might avoid giving proper discovery and not be later held to account.

In Commonwealth Bank of Australia v Quade,¹¹⁶ the question was whether a new trial should be granted in circumstances where a successful party had failed to comply with an order for discovery of documents. The existence of the documents emerged after judgment. The Court¹¹⁷ observed that the general rule relating to fresh evidence is not directed to the case where the trial itself has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error or to a case of surprise, malpractice or fraud. Such cases cannot properly be seen as mere cases of fresh evidence. A failure to comply with a discovery order, particularly where the failure was deliberate or remains unexplained, is apt to come within the category of “cases of malpractice”. The Court further observed¹¹⁸ that to require the applicant for a new trial in those circumstances to satisfy the test with respect to the cogency of the evidence referred to above would, first, cast upon the innocent party an unfairly onerous burden of demonstrating to virtual certainty what would have happened in the hypothetical situation which would have existed but for the other party’s misconduct and, secondly, in so far as the public interest in the administration of justice is concerned, “…be likely to ensure to the successful party the spoils of his own default and thereby encourage, rather than to penalize, failure to comply with pre-trial orders and procedural requirements.”

Nevertheless, while it may not be necessary for the applicant in circumstances of malpractice to satisfy the cogency test generally required to obtain a new trial on the basis of fresh evidence, it must still at least appear that there is a real possibility that the outcome of the would have been different.¹¹⁹

Re-opening judgments and orders by consent

UCPR r.667 (2)(e) provides that the court may set aside an order at any time if the party who has the benefit of the order consents. As a general principle, the parties of full capacity may always consent to varying or setting aside an order, either before or after it has been perfected.¹²⁰ One qualification to this, however, arises where the interests of third parties are affected. Even then, as between themselves, the parties can still agree not to enforce an order or only enforce it upon agreed terms.¹²¹

Conclusion

The introduction of the UCPR does not give rise to any significant departure from the law as it previously stood with respect to varying and setting aside final judgments or orders. The overriding policy of the law requiring finality in litigation remains, and except in the exceptional circumstances which have been referred to above, the Court will not reopen judgments or orders once they have been perfected.

G. A. Thompson SC

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Endnotes

1  DJL v The Central Authority (2000) 201 CLR 226 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at para [33]. The principle that before a judgment or order is perfected  a court may vary it, rests on the notion that a court is not functus officio while there remains any judicial function which may be performed in relation to the proceeding: FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) 165 CLR 268 per Gaudron J at p289. For an example of the Court recalling an order before it is perfected see in re Harrison’s Share [1955] 1 Ch 260 CA.

2  With the exception of a jurisdiction in the House of Lords declared by it in 1675 to determine appeals from inferior courts as delegate of the Sovereign, there was no appeal procedure at common law before the Judicature Act 1873(Imp): South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523 per Isaacs J at p553. For further discussion of the position at common law see: CDJ v VAJ (1998) 72 ALJR 1548 per McHugh, Gummow and Callinan JJ at 1562-1563. The Court of Chancery had appellate power to re-open and rehear cases after the decree had been entered: DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 (13 April 2000) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. at para 34. For a discussion of the procedure under a bill of review in Chancery, see Harrison v Schipp [2002] NSWCA 78 (21 June 2002) per Giles JA. at para 141 et seq.

3  “perfected” by being drawn up as a formal order and entered in the records of the court: Bailey v Marinoff (1971) 125 CLR 529 at pp530-531.

4  Bailey v Marinoff (1971) 125 CLR 529 per Barwick CJ at 530; DJL v The Central Authority (2000) 201 CLR 226 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at para 36.

5  D’orta-Ekenaike v Victoria Legal Aid  (2005) 223 CLR 1 at [34] — [35].

6  DJL v The Central Authority (2000) 201 CLR 226 per Kirby J. at para 90.

7  This is consistent with the practice as stated in Seton, “Forms of Judgments and Orders of the High Court of Justice and Court of Appeal”, 7th ed., (1912) Stevens & Sons Limited London, where it is stated at p.187 that judgments relate back to and take effect from, the day on which they were pronounced. In Driver v Driver[1950] SASR 8 at p.10 Napier CJ said that until a judgment is entered it is “inchoate and incomplete”.

8  S.241 in Part 13, incorporating provisions from the Judicature Act 1876 (Qld).

9 In re Harrison’s Share [1955] 1 Ch 260 per Jenkins LJ at p276.

10  (1981) 147 CLR 246 at p248.

11  (1990) 21 N.S.W.L.R. 200 at p207.

12  Border Auto Wreckers (Wodonga) Pty. Ltd. v. Strathdee [1997] 2 V.R. 49 per Brooking, JA at p52.

13  Hall v. Nominal Defendant (1966) 117 CLR 423 at pp 439-440 per Taylor J (with whom Owen J agreed); Licul v. Corney (1976) 180 CLR 213 at p225 per Gibbs J (as he then was); Computer Edge Pty. Ltd. v. Apple Computer Inc. (1984) 54 A.L.R. 767 at pp767-8 per Gibbs CJ and Meddings v. The Council of the City of Gold Coast[1988] 1 Qd.R. 528 at p529 per Macrossan J and pp534 -535 per McPherson J (a case in which the writer appeared as counsel); Bienstein v Bienstein [2003] HCA 7 (13 February 2003) per McHugh, Kirby and Callinan  JJ at [25].

14  Southern Cross (supra) at pp207-8 per Kirby J; Meddings v. The Council of the City of Gold Coast [1988] 1 Qd.R. 528 at p529 per Macrossan J.

15  Many of the categories of order which have been held to be interlocutory rather than final are collected in Williams’ Supreme Court Practice at [I 64.01.445] and [I 64.01.450].

16  Hall v. Nominal Defendant (1966) 117 CLR 423 at pp439-440 per Taylor J; Tampion v Anderson  (1973) 48 ALJR 11 at p12 per Lord Kilbrandon giving the advice of the Judicial Committee of the Privy Council; Little v. The State of Victoria [1998] 4 V.R. 596 at p599 per Callaway JA.

17  Pye v Renshaw (1951) 84 CLR 58.

18 Hall v Nominal Defendant, (1966) 117 CLR 423; Meddings v. The Council of the City of Gold Coast[1988] 1 Qd.R. 528.

19  Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246.

20  Coroneo v. Kurri Kurri and South Maitland Amusement Co. Ltd.(1934) 51 CLR 328 at p 334.

21  R v Ireland (1970) 126 CLR 321 at p330 per Barwick CJ.

22  R v Ireland (supra) at p330; Ah Toy v. Registrar of Companies (1985) 10 F.C.R. 280 at pp285, 286; Wall v The King (No. 2) (1927) 39 CLR 266; Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45 at p64 per Barwick CJ and Kitto J.

23  Minister for Works (WA) v. Civil and Civic Pty Ltd (1967) 116 CLR 273 at p277. A Court may also sometimes make pronouncements in the form of rulings or advice, the status of which depends on an examination of the particular terms of the pronouncement. Ah Toy v. Registrar of Companies (1985) 10 F.C.R. 280Commonwealth v Mullane (1962) 106 CLR 166.

24  Smith v NSW Bar Association (No.2) (1992) 176 CLR 256 per Brennan, Dawson, Toohey and Gaudron JJ at p.265.

25  AutodeskInc. v Dyason(No.2)(1993) 176 CLR 300 per Mason CJ at p302.

26  Wentworth v Woollahra Municipal Council(1982) 149 CLR 672 at p 684.

27  P. W. Young, Reopening after reasons for decision, 73 ALJR 624.  As to the position in England  see: Stewart v Engel [2000] 1 WLR 2268, CA; Charlesworth v Relay Roads [2000] 1 WLR 230 at p238 per Neuberger J. As to correcting ex tempore reasons: P.W. Young, Revision of ex tempore judgments, 74 ALJR 746.

28  (1955) P 272 at p 313.

29  (1971) 125 CLR 529.

30  See also DJL v The Central Authority (2000) 201 CLR 226 per Kirby J (dissenting) at  para 107.

31  (1971) 125 CLR 529 at pp 539-540.

32  Lawrie v. Lees (1881) 7 App Cas 19, at pp 34-35; Thynne v Thynne (1955) P 272 at p 313; Preston Banking Co. v. William Allsup & Sons (1895) 1 Ch 141 per Lord Halsbury at p 143; Seton, Forms of Judgments and Orders of the High Court of Justice and Court of Appeal, 7^th ed., (1912) Stevens & Sons Limited, London pp.188 – 189.

33  Thynne v. Thynne (1955) P at p 295 per Singleton LJ referring to Pearlman (Veneers) S.A. (Pty.) Ltd. v. Bernhard Bartels (1954) 1 WLR 1457 (amendment to the title of the action).

34  Woods v. Sheriff of Queensland (1895) 6 QLJ 163 at p164 per Griffiths CJ; Owners of the S.S. “Kalibia” v. Wilson (1910) 11 CLR 689 at p 694 per Griffiths CJ.

35  R v Bowstreet Magistrate ex parte Pinochet (No 2) [2002] 1 AC 119 at p132E; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at pp301-302.

36  Preston Banking Co. v. William Allsup & Sons (1895) 1 Ch 141 at p.144;  Prestney v. Corporation of Colchester (1883) 24 ChD 376.

37  Supra. (1883) 24 Ch.D. 376.

38  Supra. (1883) 24 Ch.D. 376 at p384.

39  Nixon v W Phelan & Son Pty. Ltd. (1960) VR 94.

40  State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at pp38-39 per Mason and Wilson JJ, at p45 per Brennan J; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at p482.

41  See Bailey v Marinoff (1971) 125 CLR 529 at pp531 — 532 and the dissenting judgment of Gibbs J. at p545; Gamser v Nominal Defendant(1977) 136 CLR 145 per Aickin J at p154 ; DJL v The Central Authority (2000) 201 CLR 226 per Kirby J (dissenting) at  para 107.

42  [2002] 2 All ER 353; See also N. Andrews, English Civil Procedure, Fundamentals of the New Civil Justice System, Oxford University Press (2003) at p962.

43  Supra per Lord Woolf CJ at p358.

44  [1981] AC 909 at p977.

45  (1971) 125 CLR 529.

46  (2000) 201 CLR 226.

47  Biala Pty Ltd v Mallina Holdings Ltd (1990) 2 WAR 381 at pp388 — 391 per Malcolm CJ, and pp397 — 398 per Brinsden J, Franklyn J concurring at p400; Harrison v Schipp (2002) 54 NSWLR 612 at pp.615 — 616 per Handley JA, at p.630 per Giles JA and at p.645 per Ipp AJA. and Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2003] WASCA 67 (28 March 2003) per Murray, Anderson and Parker JJ at para 30.

48  Seton, Forms of Judgments and Orders of  the High Court of Justice and Court of Appeal, 7^th ed., (1912) Stevens & Sons Limited, London p.187; Halsbury’s Laws of England, vol. 37, Practice and Procedure, (2001, re-issue) para 1211;  L. Shaddock and Associates Pty. Ltd. v. Parramatta City Council (No. 2) (1982) 151 CLR 590 at pp594 — 595.

49  In DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 (13 April 2000) Kirby J observed at para 105 that the expression “inherent powers” should not be used in relation to courts created by statute, and that in the case of statutory courts it may be necessary to attribute the power (where it is not conferred expressly by or under such legislation) to an implication derived from the legislation establishing the body.

50  Milson v. Carter (1893) AC 638, at p 640; L. Shaddock and Associates Pty. Ltd. v. Parramatta City Council (No. 2) (1982) 151 CLR 590 at p594; Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141 at p144; Bailey v Marinoff (1971) 125 CLR 529 at p540 and see B. H. McPherson, P. P. McQuade and B. Cairns, Queensland Civil Practice, Lawbook Co., 2001 at pp 1-2632 to 1-2635.

51  Compare former RSC O. 32 r 12; High Court O. 29 r. 11; Former UK O.20 r. 11.

52  Raybos Australia Pty Limited v. Tectran Corporation Pty Limited [1988] HCA 2 (10 February 1988) at [6].

53  In Hatton v Harris [1892] AC 564 the application was successfully made 39 years later.

54  R v Cripps, Ex parte Muldoon (1984) 2 All ER 705 per Donaldson MR at p710; Amett v Holloway [1960] VR 22 at p28.

55  per Donaldson M.R. in R v Cripps, Ex parte Muldoon (1984) 2 All ER 705 at p710.

56  L. Shaddock and Associates Pty. Ltd. v. Parramatta City Council (No. 2) at p594 referrring to Fritz v. Hobson (1880) 14 ChD 542 at pp 561-562; Chessum & Sons v. Gordon (1901) 1 KB 694 at p 698; In re Inchcape(1942) Ch 394 at pp 397-398; Coppins v. Helmers & Brambles Constructions Pty. Ltd. (1969) 2 NSWR 279, at pp 281-282; Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co. (1973) 1 WLR 300 at p 304; See also Commonwealth v McCormack (1984) 155 CLR 273 at p277.  

57  Supra., (1984) 155 CLR 273.

58  See also Raybos Australia Pty Limited v. Tectran Corporation Pty Limited [1988] HCA 2 (10 February 1988): oversight on the part of counsel to ask for costs.

59  (1985) 157 CLR 215 per Gibbs CJ at p 275.

60  L. Shaddock and Associates Pty. Ltd. v. Parramatta City Council (No. 2) (1982) 151 CLR 590 at p597; Tak Ming Co. Ltd. v Yee Sang Metal Supplies Co. [1973] 1 W.L.R. 300 at p 306.

61  (1982) 151 CLR 590 at pp596 — 597.

62  Elyard Corporation Pty. Ltd. v DDB Needham Sydney Pty. Ltd. (1995) 61 F.C.R. 385 Lockhart J (with whose judgment Black CJ concurred) at pp390-1.

63  (1987) 9 N.S.W.L.R. 446 at p453.

64  [1892] A.C. 547 at p558.

65  (1982) 151 C.L.R. 590 at p593.

66  See also Tak Ming Co. Ltd. v Yee Sang Metal Supplies Co. [1973] 1 W.L.R. 300 at 304 where the Judicial Committee referred to the determination of the primary judge: “I am in no doubt whatever … that I would have made an award of interest” and Commonwealth v McCormack (1984) 155 C.L.R. 273 at p277 the court said: “If the matter had been raised on the hearing of the appeals, such an order would have been made as of course …”

67  Arnett v Holloway (1960) VR 22 (referring to Re Army and Navy Hotel (1886) 31 ChD 644; and Ivanhoe Gold Corp Limited v Symonds (1906) 4 CLR 642).

68  R v. Cripps ex parte Muldoon [1984] 1 QB 686 at p697; Mutual Shipping Corporation v Bayshore Shipping Co. [1985] 1 Lloyd’s LR 189 per Donaldson M.R. p 193 and Robert Goff LJ at p195; Bristol-Myers Squibb Company v. Baker Norton Pharmaceuticals Inc and Napro Biotherapeutics Inc [2001] EWCA Civ 414 (28th March, 2001).

69  (1984) 2 All ER 705 at p710.

70  (1991) 103 FLR 290; see also Cawood v Infraworth [1990] 2 Qd R 114 at p122.

71  (1987) 9 NSWR 446 at p453.

72  Thynne v Thynne [1955] P 272 at p314 (this case involved amending a divorce decree to record the date of an earlier marriage ceremony); Pearlman (Veneers)S.A. v Bernhard Bartels [1954] 1WLR 1457; Suncorp Metway Ltd v Newson & Ors (unreported, No 2291 of 1999, Skoien SJDC, 9 August 1999).

73  MacCarthy v Agard [1933] 2 KB 417 at p427.

74  Armitage v Parsons (1908) 2 KB 410.

75  Re: Inchcape  (1942) Ch 394; Rowe v. Delfs (1966) WAR 49; Gould v Vaggelas(1985) 157 CLR 215.

76  Storey and Keers Pty Limited v Johnstone (1987) 9 NSWLR 446; Rose v. Terry Hewat Commercial Diving Pty Ltd (unreported, Supreme Court of Queensland, No 115 of 1995, Demack J, 17 August 1999); Davey v. Tricare Ltd [2003] QCA 419 (26 September 2003) and 168 Wharf St Pty Ltd v. Amstar Learning Pty Ltd & Ors [2005] QCA 44 per McPherson JA (Williams and Jerrard JJA agreeing) reducing the amount (including interest) for which judgment was given against the defendant in the District Court from $72,605.75 to $33,573.36.

77  Qld Pork Pty Ltd v Colleen Therese Lott [2003] QCA 271 (in this case the correction was made before formal orders had been made).

78  Gould v Vaggelas (No.2) (1985) 157 CLR 215; L. Shaddock and Associates Pty. Ltd. v. Parramatta City Council (No. 2) (1982) 151 CLR 590; see also Walz Construction Company Pty Ltd v. Suncorp Insurance and Finance and others [2001] QSC 63 (claim not considered in original judgment because of erroneous belief that it had been abandoned).

79  No. NG 606 of 1995 FED No. 943/95.

80  The Full Court referred with apparent approval to Re Draper; Ex parte Brosalco Pty Ltd (1983) 48 ALR 656 (per  McGregor J) and Re Van Coblyn v Mercantile Credits Ltd, unreported, 21 September 1992 (per Einfeld J) where the use of the slip rule had been identified as a means of  extending the life of a bankruptcy petition notwithstanding subsection 52(5) of the Bankruptcy Act.

81  [2002] QCA 138 (Davies JA Mullins and Holmes JJ).

82  See also Federal Court Rules O35 r7. In Australasian Meat Industry Employees Union v. Mudginberri Station Pty. Ltd.(1986) 65 ALR 683 Gray J. at 688 also observed that the Federal Court of Australia possessed power to strike down its own judgments obtained by fraud under ss 5(2) and 23 of the  Federal Court of Australia Act 1976.

83  (1940) 64 CLR 130 at p147; Di Carlo v. Dubois [2007] QCA 316 at [33].

84  See also Hip Foong Hong v. H Neotia & Company (1918) AC 888; Jonesco v Beard (1930) AC 298 and Emanuel Management Pty Ltd & Ors v. Foster’s Brewing Group Limited & Ors [2000] QSC 430 (28 November 2000) per Williams J.

85  R v. Saddlers’ Company (1863) 10 HLC 404 at p431 where Willes J said: “A judgment or decree obtained by fraud upon a court binds not such court, nor any other; and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding (Phillipson v. Lord Egremont (1844) 6 QB 587; 115 ER 220; Bandon v. Becher (1835) 3 Cl and Fin 479; 6 ER 1517; Shedden v. Patrick; see also Tommey v. White (1853) 4 HLC 313; 10 ER 483).”

86  (2000) 201 CLR 226 at para 35; see also CDJ v VAJ (1998) 72 ALJR 1548 at p1563.

87  Jonesco v. Beard [1930] AC 298; McDonald v. McDonald (1965) 113 CLR 529 per Taylor J. at pp534 – 535; Australasian Meat Industry Employees Union v. Mudginberri Station Pty. Ltd. (1986) 65 ALR 683 at p688 per Gray J.; McHarg v. Woods Radio Pty. Ltd. (1948) VLR 496 at p497; Wentworth v. Rogers (No 5) (1986) 6 NSWLR 534 at p538; Spies v. Commonwealth Bank of Australia (1991) 24 NSWLR 691 at pp699-700; Halsbury’s Laws of England 4th ed, vol 26, para 560.

88  McHarg v. Woods Radio [1948] VLR 496 per Herring CJ at p497, where his Honour said: “Such an action is an independent proceeding equitable in its origin and nature. In it the fraud complained of is put in issue and that fraud only”. It is enough to establish affirmatively that the earlier action was tainted by the fraud: McDonald v. McDonald (supra), Nicholls v. Carpenter (1974) 1 NSWLR 369.

89  Jonesco v. Beard [1930] AC 298 at p301.

90  Carter v. Rosedale Sawmill [1995] QCA 441 (3 October 1995).

91  (1938) 60 CLR 336;  per Kirby P in Wentworth  v. Rogers (No 5) 1986) 6 NSWLR 534 at p538.

92  (1986) 6 NSWLR 534 at pp538 – 539; see also Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234 at p241;  Magarditch v. Australia and New Zealand Banking Group Ltd (1999) 17 ACLC 1275 and Pembroke School Incorporated v. Human Rights and Equal Opportunity Commission [2002] FCA 1020 and Di Carlo v Dubois [2007] QCA 316 at [30].

93  See also Boughen v. Abel[1987] 1Qd R 138, 146 and Di Carlo v. Dubois [2007] QCA 316 at [33].

94  Except in very exceptional cases, an allegation of perjury will not be a sufficient basis to set aside a judgment. In Cabassi v. Vila (1940) 64 CLR 130, Williams J said, at pp147 — 8 observed that he had been unable to find any case in which a judgment had been set aside where the only fraud alleged was that the defendant or some witness or witnesses, alone or in concert, had committed perjury. See also McDonald v. McDonald (1965) 113 CLR 529 per Windeyer J at p544.  See also Carter v. Rosedale Sawmill [1995] QCA 441 (3 October 1995).

95  See also Boughen v. Abel[1987] 1Qd R 138, 146 and Di Carlo v. Dubois [2007] QSC 95 at [11].

96  [1987] 1Qd R 138.  See also Di Carlo v. Dubois [2007] QCA 316.

97  (1995) 1 WLR 44 per Lord Templeman at p48.

98  [1992] 2 AC 443 per Lord Bridge at p483.

99  (1992) 37 FCR 234 FC at p241; see also D. M.  Gordon Q.C., “Fraud or New Evidence as Grounds for Actions to set aside Judgments”, (1961) 77 Law Quarterly Review 358.

100  (1965) 113 CLR 529.   

101  (1965) 113 CLR 529 at p533.

102  (1965) 113 CLR 529 at p542.

103  (1965) 113 CLR 529 at pp542 — 543.

104   (1961) 77 Law Quarterly Review 358.

105  (2002) 54 NSWLR 46.

106  (2002) 54 NSWLR 46 at p 54.

107  [1995] QCA 441 (3 October 1995).

108  Orr v Holmes (1948) 76 CLR 632 per Dixon J (as he then was) at p.640.

109  McDonald v. McDonald (1965) 113 CLR 529 per Barwick CJ at pp532-533; Menzies J at p543;  CDJ v. VAJ (1998) 197 CLR 172 per Gaudron J at p185; IVI Pty Ltd v. Baycrown Pty Ltd [2006] QCA 461.

110  Autodesk Inc. v. Dyason (No.2) (1993) 176 CLR 300 per at p303.

111  (1965) 113 CLR 529 at pp532-533.

112  (1955) 93 CLR 435 at p444.

113  [1995] QCA 441 (3 October 1995).

114  (1991) 178 C.L.R. 134 at p141; IVI Pty Ltd v. Baycrown Pty Ltd [2006] QCA 461 at [13] — [18].

115  See also Orr v. Holmes (1948) 76 CLR 632 per Dixon J at 640.

116  (1991) 178 CLR 134. See also Londish v. Gulf Pacific Pty Ltd (1993) 117 ALR 361.

117  Mason CJ, Deane, Dawson Toohey and Gaudron JJ at pp140-141.

118  (1991) 178 CLR 134 at p142.

119  (1991) 178 CLR 134 at p143.

120  Ainsworth v. Wilding [1896] 1 Ch 673 at p677; Permanent Trustee Co (Canberra) Ltd v. Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 at p50 per Brennan J.

121  DJL v. The Central Authority (2000) 201 CLR 226 per Kirby J at para [93].