Case: Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224
Outcome: considered
has further been suggested that the Court has limited power to make " supplemental orders ": Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224. Lee, Hill and Cooper JJ there observed at 234 to 236: There is no doubt that the common law rule is that once a judgment of the Court has been passed and entered, the Court thereafter lacks power to make an order which alters or sets aside that judgment. The only remedy in such a case for a dissatisfied litigant is, where available, an appeal: Re St Nazaire Co (1879) 12 Ch D 88 ; Re Suffield and Watts; Ex parte Brown (1888) 20 QBD 693 at 697 per Fry LJ and at 698 per Lopes LJ; and cf Gamser v Nominal Defendant. The general rule admits to certain exceptions but these are, so the respondent submits "severely circumscribed". One such exception is the "slip rule": see L Shaddock &amp; Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59 ; (1982) 151 CLR 590 ; another exception is fraud and a third relates to self-executing orders. None of these is relied on in the present case. Order 35, r 7 of the Federal Court Rules sets out exceptions to the general rule that the court will not vary or set aside judgments. These examples largely reflect the common law position. None is here relevant. However, Caboolture relies upon what is said to be the power of courts to make supplemental orders where circumstances make it necessary so to do. That in an appropriate case a supplemental order may be made after judgment is entered, is clear from Preston Banking Co v William Allsup &amp; Sons [1895] 1 Ch 141. The true principle was expressed in that case by Lord Lindley (at 143-144) as follows: This is not an application to alter an order on the ground of some slip or oversight. Nor is it a case in which the order has not been drawn up. Here the order has been drawn up, and it expresses the real decision of the court; and that being so, the Court has no jurisdiction to alter it. If this summons had proceeded on the theory that the order of the 11 th of July was right, and that circumstances had since occurred which had rendered a supplemental order necessary, the Court might have entertained the application; but this summons proceeds on the theory that the order of 11 July is wrong. In my opinion, it is of the utmost importance, in order that there may be some finality in litigation, that when once the order has been completed it should not be liable to review by the judge who made it. Critical to the jurisdiction of the Court is first that the application not be one in any way to vary or alter the initial order. The present application does not seek to do this. It is, in the sense used in the cases, a supplemental order. ... The principle behind denying the right of a court to vary or alter a judgment regularly given and entered is the need for finality of litigation. The Court has adjudicated upon the facts of the claim brought by a plaintiff against a defendant, found for one side and entered the relevant judgment. Neither the facts nor the law are to be agitated again, save on an appeal. But the issues involved where a claim is made against a solicitor for costs by a party to the litigation have not been determined by the judgment which has been entered. They remain yet to be resolved. The power to make such " supplemental orders ", it will be noted, is not a power " to vary or alter a judgment regularly given ...". The revocation of the July 2007 Order certainly cannot be characterised as " supplemental orders ". No other source of power to vary or revoke the order as made in July 2007 has been identified.