Case: Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139
Outcome: considered
respect of the factor of "exceptional circumstances", the observation of the majority of the High Court in Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 178 that: "A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust ..." , is a relevant consideration. I also take into account the observation of Heydon JA in Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 (" Manning ") at par [46]: "... These 'general rules' and 'ordinary rules of practice' [as to when a further interlocutory application can be made when an earlier interlocutory application has been determined] are to be administered bearing in mind the 'over-riding principle governing the approach of the Court to the interlocutory applications', namely 'that the court should do whatever the interests of justice require in the particular circumstances of the case': Brimaud v Honeysett Instant Print Pty Ltd (at 4)" , and of Palmer A-JA (with whom Mason P and Santow JA agreed) in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at 318: "...the over riding principle governing the approach of the court to the interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case: per Foster A-JA in Nominal Defendant v Manning (at 161)". The present state of authorities reveals that there are two divergent views as to the circumstances in which a court will entertain a second interlocutory application in respect of the seeking of the same order as was sought in an earlier interlocutory application which was dismissed. There is: (a) what is said to be the strict view of Brooking and Hayne JJA in D A Christie Pty Ltd v Baker [1996] 2 VR 582 (" Christie ") and Mason P in Manning ; (b) what is said to be the liberal view of Charles JA in Christie and of Heydon JA and Foster AJA in Manning . The applicants submitted that as a matter of principle, a second interlocutory application may be made where there has been a material change in circumstances since the original application was heard, or where there has been discovery of new material which could not reasonably have been put before the Court on the hearing of the original application referring to Manning . The applicants submitted, however, that recent authorities suggest that the ability to make a subsequent application is not limited only to these circumstances, as has been considered in Manning . The applicants submitted that by a majority, the New South Wales Court of Appeal in that case refused to follow Christie . It was submitted that the Court of Appeal held that whether a second or subsequent application should be stayed was ultimately a matter for the discretion of the Court. Further, the applicants submitted that Christie does not stand as a general authority applicable to all interlocutory applications. Instead, the majority decision of Brooking JA and Hayne JA was said to make it clear that they were not laying down a general rule to be applied carte blanche. The decision of Mandie J in Global Realty Development Corp (a Dellaware Company) v Dominion Wines Ltd (in liq) (2005) 225 ALR 361 was cited in support of this proposition. In Manning , Heydon JA made the following observations at 155-156, [70]-[72]: "The assumptions made by Charles JA in D A Christie Pty Ltd v Baker as to the construction of the New South Wales legislation and the likelihood of evidence being received on interlocutory appeals appear to correspond with the approach of the New South Wales Courts. In these circumstances it cannot be said that the majority reasoning in D A Christie Pty Ltd v Baker should, as a matter of comity or otherwise, be followed. Rather, the position in New South Wales is such that the principles propounded by Charles JA should be applied in order to avoid an anomalous difference arising between the relative liberality with which evidence is admitted on interlocutory appeals and the extremely restrictive approach to permitting second interlocutory hearings based on additional (but not fresh) evidence urged by the Nominal Defendant. Whether Charles JA is, or the majority in D A Christie Pty Ltd v Baker are, correct on the true view of the Victorian legislation is not a matter that need be commented on. For present purposes it is not necessary to go further than to reject the test proposed by the Nominal Defendant, and to decline to apply the view of the majority in D A Christie Pty Ltd v Baker that the applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before. It is not necessary, and it is probably undesirable, to seek to define a test capable of application to all cases involving statutory extensions of time to start proceedings, or even all cases arising out of s 52(4) of the Motor Accidents Act 1988 . The Nominal Defendant did not submit that if the test contended for did not exist, the conduct of the respondent constituted an abuse of process on any other basis. Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker (at 602-603) the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs and others damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily are evils which each court in its individual discretion will rightly strain to avoid." It is to be noted that in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 , Palmer A-JA said that nothing said by the majority in Manning could be construed: "... as indicating a permissive or relaxed attitude of the court to the bringing of more than one interlocutory application for the same order indeed, quite to the contrary: see eg, per Heydon JA (at 156 [72])". Whilst acknowledging that there is conflict in the authorities concerning the applicable legal principles governing a second interlocutory application, ASIC submitted that the view of the majority of court in Christie and Mason P in Manning was to be preferred. This preference was said to be based on a close examination of the reasons for the divergence in views and the applicable Rules of Court in Victoria and New South Wales. ASIC submitted that the minority view of Charles JA in Christie was predicated on the basis that it would be anomalous to hold that a further interlocutory application was an abuse of process because it was based on fresh evidence that was reasonably available at the first application, when, under the applicable Rules of Court, such evidence could be adduced on appeal. In Victoria, it was said that there is no longer a requirement for "special grounds" to admit new evidence in appeals from final orders or in appeals from interlocutory orders: see Supreme Court Rules , r 64.22(3). ASIC submitted that having regard to the rules in the Federal Court applicable to the reception of evidence in appeals from interlocutory orders, the correct approach in the Federal Court is, or should be, the strict view of Brooking and Hayne JJA in Christie and Mason P in Manning . The result is, according to ASIC, that the applicants must show that the fresh material they rely upon was not reasonably available to them on the first application or else the second application must be dismissed as an abuse of process. In New South Wales, however, a distinction is drawn by the legislation between appeals from final orders and from interlocutory orders. In interlocutory orders, there is no requirement for "special grounds" to adduce fresh evidence. This, it was submitted, explained why Heydon JA and Foster AJA in Manning preferred the approach of Charles JA's dissenting judgment . To this extent, it was submitted that as s 27 of the Federal Court Act 1976 (Cth) and O 52 r 36 of the Federal Court Rules draw no distinction between appeals from final orders and appeals from interlocutory orders (as per the Victorian position) that "special grounds" (or some similar exceptional circumstances) must be established to receive fresh evidence. To the extent that there is conflict or inconsistency between the decisions or rationes in Christie and Manning , it is not for me to resolve that conflict or inconsistency or decide which is the correct or preferable principle to adopt. I leave that exercise to more eminent judicial authority. I have concluded that the circumstances upon which the applicants rely to renew their call for production of documents pursuant to the Subpoena to Produce issued on 13 July 2007 constitute either a material change in circumstances since their original application heard before me on 11 and 17 September 2007 and since the hearing before the Full Court or the discovery of new material which could not reasonably have been put before me on 11 or 17 September 2007 or before the Full Court. I have also concluded that those circumstances constitute such exceptional circumstances as, consistently with the reasoning of the Court of Appeal in Manning warrant the exercise of my discretion in favour of allowing the applicants' motion filed on 16 January 2009 to be heard and determined on its merits. I am also of the view that it would be unjust not to allow the applicants to make a further application to inspect the documents produced by ASIC under the subpoena in respect of which ASIC claims privilege from production on the ground of PII: Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (supra); National Parks and Wildlife Service v Pierson (supra) (par [39] above).