Case: D A Christie Pty Ltd v Baker [1996] 2 VR 582
Outcome: considered
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 . ASIC and Multiplex submitted that a second interlocutory application will be an abuse of process if it is not based upon fresh material which was not available at the time of the original interlocutory application or a material change in circumstances since that application. In Christie , Brooking JA and Hayne JA held that as the purported new material had been available at the time of the first application and as the applicant had not offered any explanation for the reason why it was not being adduced, that the second application should have been stayed as an abuse of process. Charles JA dissented and said at 610-611: "I do not think it is open to this court to adopt a rule which would preclude, as an abuse of process, the making of a second application for an extension of time simply because the applicant seeks to bring forward additional relevant facts which would not satisfy the 'fresh evidence' rule. ... ... I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent." ASIC's written submissions asserted that Batt J's ruling in Guss v Magistrates' Court of Victoria [1998] 2 VR 113 established Christie as a rule of general application. 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." 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. 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.