Case: Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300
Outcome: followed
The authorities indicate that the kind of exceptional circumstances that might attract the power of discharge or variation include where an interlocutory order was obtained by fraud or non-disclosure of material facts, or through an accident or mistake that occurred without the fault of the parties seeking the relief under O 35 r 7: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-551. The court's discretion to vary or set aside an order is to be exercised with great caution having regard to the importance of the public interest in the finality of litigation: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 (' Brown' ) at 178; Baker v Beckett (unreported, Supreme Court of NSW, Cohen J, 26 May 1998) (' Baker' ); and Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745 (' Chanel' ) at 751. Similar principles apply to the variation or discharge of final orders: see Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 (' Autodesk' ) at 302, 307, 309-310, 317-318 and 321. Further, as Spender J emphasised in Dudzinski in relation to O 35 r 7(2)(c), the rule is not an alternative to the appellate procedure in respect of interlocutory judgments, nor is it to be invoked for the purpose of allowing a party to present a case a second time to its better advantage. In my opinion, these principles apply, a fortiori, where the party applying for discharge of an interlocutory order seeks to reargue the issues that have already been determined by reference to additional evidence that was available to it on the earlier occasion but which it chose not to advance: see also Autodesk at 310 per Brennan J. 9 The authorities, particularly the cases in this Court, make it clear that circumstances must be demonstrated that make it appropriate to entertain the application. It will not be appropriate to do so where it simply amounts to an application to re-run an argument that could have been run on additional evidence. To allow parties to seek to discharge or vary orders in that kind of circumstance would be to subvert the finality of litigation and to invite interminable arguments about issues which have already been adjudicated upon: see Autodesk at 310 per Brennan J. 10 In this case, the respondents now seek to rely on two further affidavits affirmed by Mr James Hugh Lavery on 25 May 2006 and Ms Shelley Ruth Marcus on 25 May 2006. Both affidavits go to issues that were fully and openly contested at the hearing before me on 19 May 2006. The affidavits do not raise any new issue or newly discovered facts or disclose any circumstances that have changed since 19 May 2006. 11 At the hearing on 19 May 2006, the applicant submitted that trust and confidence had not been destroyed between the applicant and her employer and that she had continued to perform her duties in the course of her employment until the day on which she was served with the notice of termination. The respondents traversed these contentions, arguing the contrary position that it was evident that there was now no trust and confidence. That was done both in writing and orally. I addressed these matters in my reasons for judgment of 19 May 2006. 12 After I had delivered judgment and pronounced the orders on 19 May 2006, senior counsel for the respondents foreshadowed this application and explained that counsel for the respondents had taken a conscious and deliberate decision not to place affidavit material of the kind now sought to be relied upon before the Court. The respondents are bound by the decisions of their counsel made in the course of proceedings. In my opinion, there is nothing that would bring this application or this additional evidence within the principles governing the circumstances in which the Court will exercise the power to discharge or vary one of its orders. Accordingly, the application must fail because it does not demonstrate facts and circumstances of the kind that must be demonstrated on the authorities to support an application for variation or discharge of an order. 13 On this ground alone, I propose to dismiss the notice of motion. In any event, if I had regard to the material in the further affidavits of Mr Lavery and Ms Marcus, it would not cause me to alter the conclusion I reached in my previous judgment. It would not alter my evaluation of where the balance of convenience lies nor would it cause me to refuse relief on discretionary grounds.