Case: Athens v Randwick City Council (2005) 64 NSWLR 58
Outcome: followed
Hamersley next submits that the process of construction must be faithful to the meaning of the order as originally pronounced. A later court cannot make the order it considers the original court should have made. See generally P W Young, "Construing Court Orders" (1998) 72 ALJ 117. Nonetheless, it is now tolerably clear, and Hamersley accepts, that in construing an order, regard may be had to the reasons for judgment and to other extrinsic material where appropriate: Athens v Randwick City Council (2005) 64 NSWLR 58 at [131]-[140] per Santow JA with whom Tobias JA agreed. Moreover, in construing an order, it may be relevant to know what the successful plaintiff or applicant sought by way of relief. I shall return to this issue shortly. 72 Hamersley formulates the issue of construction concerning the orders of Kenny J as follows: &#8226; Whether, as Hamersley contends, the reference to "Rail Track Service" in the second declaration means "the bulk iron ore rail track transportation service provided by the Hamersley Rail Infrastructure Facility" with the consequence that the NCC has no power to make a recommendation regarding declaration of such a service; or &#8226; Whether, as the NCC and TPI contend, the adoption in the second declaration of the defined term "Rail Track Service" from the Robe River application carries an implication that the second declaration merely states that the NCC lacks power to make a recommendation to declare such a service, pursuant to the Robe River declaration application. 73 Hamersley submits that in resolving this issue, there is no need to resort to any extrinsic material, including, it argues, the reasons for judgment. It submits that had Kenny J intended the narrow construction for which the NCC and TPI now contend, her Honour would have said so. It argues that the ordinary meaning of the words used in the second declaration is that the Court declared, once and for all, the position in respect of any recommendation regarding declaration of Hamersley's rail track service. 74 Hamersley says that such a construction is not surprising. On the NCC's construction, the Robe River parties would not have been inhibited by the declarations made by Kenny J from making a further application, even the very next day, for a recommendation regarding the same rail track service. That is because a second application by Robe River would not be "the Robe declaration application the subject of those orders". 75 Hamersley argues that on the NCC's construction, Hope Downs would have been free, immediately following First Hamersley Iron, to apply for a recommendation in exactly the same terms as Robe River had done. It says that would be contrary to principle. It would mean that the declarations made by Kenny J would not have quelled the controversy between the parties. The Court would therefore not have discharged its judicial function. 79 The respondents say that the controversy before Kenny J plainly did not extend to all possible future times and circumstances. Her Honour's orders should not be interpreted as though it did. They say that resort may be had to contextual matters, such as the reasons for judgment and the pleadings, in order to identify the subject matter of the controversy as an aid to interpreting the orders. They refer in that regard to: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 ; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 at [49] - [51] ; Athens v Randwick City Council (2005) 64 NSWLR 58 at [27]-[29] and [129]-[140]; Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 at [28] - [36] ; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65. 84 That movement was anticipated in relation to court orders in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 , in which a Full Court of this Court held that in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the court for making the order because they formed part of the context in which the order was made. See also Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230. This second, and more flexible, line of authority was preferred by the Court of Appeal in Athens v Randwick City Council where Santow JA explained (at [129]) that the "purpose of a court order is, ordinarily, to give effect to a judgment". See also Polyaire Pty Ltd v K-Air Pty Ltd (No 4) (2007) SASC 36 ; Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1987) 93 FLR 263. 86 Indeed, I would go further. In my opinion, it is permissible when construing court orders (irrespective of whether they be ambiguous) to have regard to, at least, the pleadings which defined the issues to be resolved: Owston Nominees No 2 Pty Ltd v Branair Pty Ltd [2003] FCA 629 ; (2003) 129 FCR 558 and Athens v Randwick City Council.