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Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 (3 November 1971)

CATCHWORDS

HEARING

DECISION

MENZIES J. The present respondent brought an appeal to the Court of Appeal of the Supreme Court of New South Wales. The present appellant was the respondent to that appeal. The appeal was determined by reason of the respondent's non-compliance with the following order made by the Court of Appeal on 10th February 1970:

"IT IS ORDERED that the Appellant file and serve the appeal
books herein on or before the 31st day of March 1970 AND IT
IS FURTHER ORDERED that if the Appellant does not file and
serve the appeal books herein on or before the 31st day of
March 1970 the appeal is to stand dismissed for want of
prosecution AND IT IS FURTHER ORDERED that the costs of
this motion be costs in the appeal of the Respondent." (at p531)

2. This order was signed and sealed on 5th March 1970. Appeal books were filed on 31st March but were not served until 6th April. The appeal, therefore, in accordance with the order that had been made, stood dismissed. (at p531)

3. Notwithstanding this dismissal the Court of Appeal (1), on 28th September 1970, upon the application of the respondent, ordered that the filing and service of the appeal books in fact effected should be deemed a sufficient compliance with the order of 10th February 1970. It is against this order that an appeal has now been brought to this Court on the footing that the Court of Appeal had no power to make it, the appeal having been concluded six months before the order was made. (at p531)

4. This appeal is not concerned with the power of a court to alter orders in pending litigation. It is concerned with the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court. To recognize the problem is, I think, to solve it. However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end. If the orders made in the cases relied upon for the respondent, viz. Thynne v. Thynne (1955) P 272 and Pearlman (Veneers) S. A. (Pty.) Ltd. v. Bernhard Bartels (1954) 1 WLR 1457, were orders made to recall judgments after the litigation before a court had been concluded, they would be, I think, no more than instances of hard cases making bad law. As I read the judgments, however, there is clear recognition that a court cannot, by a further order, get rid of the operative and substantive part of its judgment. Each case was decided on the footing that something less was being effected by the order made. (at p532)

5. Cases such as Whistler v. Hancock (1878) 3 QBD 83, Wallis v. Hepburn (1878) 3 QBD 84 (n), King v Davenport (1879) 4 QBD 402 and Script Phonography Co Ltd v Gregg (1890) 59 LJ Ch 406, where it was decided that an order dismissing an action unless a condition is fulfilled within a specified time, exhaust the jurisdiction of the court once the time has expired without fulfillment of the condition, were unquestionably rightly decided. As Cockburn C.J. (1878) 3 QBD, at p 83 said in the first of these cases, "This is a very plain case". Meier v. Meier (1948) P 89, where it was decided that an appeal properly dismissed cannot be reinstated, was also a plain case. (at p532)

6. Nor do I think a court from which no appeal lies, or continues to lie, has greater inherent power to recall a judgment than has a court from which an appeal, for the time being, does lie. The extent of the inherent jurisdiction of a court to revive proceedings cannot depend upon whether its decisions are appealable or not, or whether or not the appropriate steps to appeal have been taken. The point can be illustrated hypothetically. Let it be supposed that the judgment of the Court of Appeal dismissing the appeal to it in this case were given in respect of a sum at issue of $10,000. From that judgment an appeal as of right could have been brought to this Court. When the time for giving notice of appeal had passed, an appeal would lie to this Court only by special leave. Can it be that, while there was an appeal as of right to this Court, the Court of Appeal had no inherent jurisdiction to make an order to revive the appeal which had been dismissed, but that court became endowed with power to recall the appeal to itself when the time for appealing as of right to this Court had passed? (at p532)

7. Finally, in my opinion, the decision of Kitto J. and of the Full Court of this Court in Goodwin v. Southern Tablelands Finance Co. Pty. Ltd. (1968) 42 ALJR 309 is decisive that the order now under appeal was wrongly made. This appeal can be allowed only if the decision in that case is overruled. There it had been ordered by this Court that an appeal should stand dismissed in default of compliance with an order to lodge appeal books by a date stated. There was no such compliance. Subsequently an application was made to Kitto J. to extend the time for lodging appeal books. This application was dismissed. Kitto J. said, "There is no pending appeal in this Court in which I can act. The appeal stands dismissed by order of the Full Court and that being so I cannot revive it and I do not think the Full Court could revive it." An appeal to the Full Court was dismissed, the Court saying, with respect to the earlier order of the Full Court, "It is not within the power of this Court to vary that order. Once the appeal was dismissed that was an end of the matter." This decision, which was not brought to the attention of the Court of Appeal, is authoritative and, in my opinion, is correct. (at p533)

8. I would allow this appeal. (at p533)

OWEN J. The relevant facts and the cases bearing on the question raised on this appeal have been discussed in the judgments of other members of the Court which I have had the advantage of reading. In my opinion the appeal should be allowed. (at p533)

WALSH J. The order made by the Court of Appeal Division of the Supreme Court of New South Wales on 10th February 1970, its further order made on 28th September 1970 and the circumstances which led to the making of the second of those orders are set out in the judgment of Gibbs J. which I have had the advantage of reading. This appeal, which has been brought by special leave of this Court against the last-mentioned order, turns upon the question whether it was an order which the Court of Appeal had power to make. (at p533)

2. In its judgment the Court of Appeal considered many authorities dealing with the circumstances in which and the extent to which a court has inherent jurisdiction to revoke or alter its orders. The Court came to conclusions which it expressed in the following terms (1970) 92 WN (NSW) 280, at p 288:

"The conclusions which we have arrived at in the light of
the considerations which we have discussed are that such a
case as the present is within the scope of the doctrine referred
to in the more modern authorities of the court's inherent
jurisdiction to intervene in order that justice may be done;
and, further, that such intervention may take place, in such a
case, without impinging on the considerations upon which is
founded the general principle against alteration or rehearing
once an order has been reduced to formal shape. By 'such
cases' we mean cases of conditional orders made under r. 22
wherein the appellant has applied himself with due diligence
to the fulfilment of the condition within the time limited
therefor and has failed therin only because of the occurrence
of circumstances beyond his control."

3. The order which the Court of Appeal made is not in form an order revoking or varying the earlier order, which provided that the appeal should stand dismissed if the appellant (the present respondent) did not file and serve the appeal books on or before a specified day. But it is plain that the order now under appeal operated, as the Court of Appeal realized, to set aside the dismissal of the appeal which had become effective when in fact the appeal books had not been filed and served on or before the specified day. (at p534)

4. I have come to the conclusion that this appeal should be allowed. I do not think that the decision of the Court of Appeal, if allowed to stand, would result in any such widespread disorder and uncertainty as were suggested in argument to be likely to occur if judgments and orders were to be deprived of finality. The Court was fully conscious of the policy considerations requiring that in general an order should not be set aside or varied by the Court which made it. I would not apprehend any danger that the discretionary power which the Court of Appeal declared itself to have would be used too readily or unwisely. But the question is not whether the Court of Appeal ought to have a reserve power which would enable it (to repeat a phrase used by that Court) "to intervene in order that justice may be done". It is whether, as a matter of law, the Court has an inherent power to deal further with an appeal which by its formal order, not being at variance with its intended order, has already been dismissed. (at p534)

5. The principal English authorities were reviewed by the Court of Appeal and they are considered in judgments prepared by other members of this Court in this appeal. Therefore, I think I may state my reasons without discussing in detail the cases to which we were referred. (at p534)

6. The reasons given by the Court of Appeal, in so far as they referred to the previous authorities, may be described as having a positive and a negative aspect. The Court referred to dicta in some of the more modern cases suggesting that the courts have an inherent jurisdiction to vary their own orders, in the interests of justice, to an extent which has not been and should not be limited by strict definitions. These observations were regarded as supporting the conclusion to which the Court of Appeal came. Then certain earlier decisions and statements of principle, which appeared to deny any power in the Court to review its own orders (leaving aside special cases in which the slip rule could be applied or in which an order as drawn up failed to express accurately the intention of the Court), were distinguished upon various grounds. I think it may fairly be said, in relation to the judgment of the Court of Appeal, that none of the cases to which their Honours referred was a decision which clearly supported their conclusion and, secondly, that even if each of the decisions which denied the existence of power in a court to review its own orders could be distinguished from the case now under consideration, nevertheless there would be a substantial body of judicial opinion tending against the view that the inherent jurisdiction of the Court enables it to revive by a subsequent order an appeal which has been dismissed. In the more recent English cases, as well as in the earlier ones, there are to be found statements which are inconsistent with that view. In Meier v. Meier (1948) P 89, in which relief was refused against the effect of an order for the dismissal of an appeal, it is true that the main ground taken by two of the members of the Court was that the Court could not interfere with a decree absolute for divorce. But the judgment of Somervell L.J. is inconsistent, in my opinion, with the conclusion reached in the present case by the Court of Appeal. Again, in Thynne v. Thynne (1955) P 272, in which the Court held by majority that it had power to amend its decrees in the manner explained in the judgments and in which Singleton L.J. (1955) P, at p 295, and Morris LJ (1955) P, at p 313, made observations to the effect that it was undesirable to limit by definition the inherent powers of the Court, the principle seems nevertheless to have been accepted that it is beyond power to alter a perfected judgment so as to get rid of the "operative and substantive part" of it: see per Singleton L.J. (1955) P, at pp 296 and 301, and per Morris LJ (1955) P, at pp 314 and 315 More recently, in National Benzole Co. Ltd. v. Gooch (1961) 1 WLR 1489, where no order for the dismissal of the appeal had been drawn up and entered, it seems to have been taken for granted in the judgments that if this had been done the court would have had no further jurisdiction to entertain any application in relation to the matter. (at p536)

7. In 1968 a decision was given by this Court which was not brought to the attention of the Court of Appeal in the present case. As this decision has not been reported, I think that it is desirable to refer to it in some detail. In Goodwin v. Southern Tablelands Finance Co. Pty. Ltd. (1968) 42 ALJR 309 an order was made on 24th April 1968 by the Full Court that certain steps should be taken by the appellant on or before 30th June 1968 and that in default of compliance with the order by 30th June 1968 or such later date as a Justice might appoint the appeal should stand dismissed: see O. 70 r. 28 of the High Court Rules. The steps were not taken by 30th June and no application was made before that date for the appointment of a later date. On 11th July 1968 an application was made to a single Justice asking that the appellant be at liberty to take the steps within seven days after the hearing of the applciation. This application was heard on 16th July by Kitto J. who dismissed it. The order of 24th April was formally taken out on 15th July 1968, that is after the filing of the application but before it was decided. An appeal from the order of Kitto J. was dismissed by the Full Court on 15th August 1968. (at p536)

8. Kitto J. considered that he had no power to make the order. He said that there was no pending appeal in the Court in which he could act and that the appeal stood dismissed by order of the Full Court and he could not revive it and he did not think that the Full Court could revive it. He took the view also that even if he had power to make an order it was not a case in which he should do so. The Full Court said that it was not within the power of the Court to vary the order made on 24th April 1968 by virtue of which the appeal was dismissed. The Court said: "Once the appeal was dismissed, that was the end of the matter." (at p536)

9. It may be assumed, I think, that the reference in the order of 24th April to "such later date as a Justice may appoint" was regarded as applying only to the fixing before the specified date had arrived of a later date, so that it had no further effect when the specified date had gone by. The Court did not refer in its reasons for judgment to the formal taking out of the order or to the date when this had been done. Since the order had been taken out before the appeal to the Full Court and, indeed, before Kitto J. had decided the application heard by him, it may be that the case should be regarded as one in which the distinction that has been drawn in the authorities (see, for example, National Benzole Co. Ltd. v. Gooch (1961) 1 WLR 1489), between cases in which orders have not been formally drawn up and cases in which they have been drawn up was of no relevance. The fact that an application to a single Justice to vary an order of the Full Court was filed before the order was drawn up could not perhaps be considered as providing any impediment to an effective formal entry of the order. At all events the decision of the Court in Goodwin's Case (1968) 42 ALJR 309 must be regarded, in my opinion, as a direct authority for the proposition that there is no inherent power to vary an order by which an appeal stands dismissed in a case such as the present one in which the order was formally drawn up and entered before any application to vary it was made and in which, therefore, no question arose as to the power of the Court to vary an order of that kind if the order, although it was or has become an unconditional order for the dismissal of an appeal, has not yet been taken out. (at p537)

10. It is true that in Goodwin's Case (1968) 42 ALJR 309 the question of the power of the Court to vary the previous order was not fully argued. The appellant appeared in person and in the Full Court counsel for the respondent was not called upon to address the Court. But the three Justices, who constituted the Court, Menzies, Windeyer and Owen JJ., concurred in the decision. The fact that there was not full argument would have much significance if it appeared that the Court decided the matter in a way which was inconsistent with some authoritative decision or decisions which had been overlooked. But this is not so. If it be assumed that the English authorities to which the Court of Appeal referred were not conclusive against the decision which it gave, it seems clear, nevertheless, that the contrary view, that is to say, the view adopted in Goodwin's Case (1968) 42 ALJR 309 by this Court, could not be regarded as being manifestly wrong. In Cain v. Malone [1942] HCA 20; (1942) 66 CLR 10, at p 15, Latham CJ said:

"A decision of three Justices (as in Farmer's Case [1940] HCA 19; (1940) 63 CLR 603)
especially with one Justice dissenting, can certainly be
overruled by a Bench of five Justices: See per Higgins J. in Gray
v. Dalgety & Co. Ltd. [1916] HCA 35; [1916] HCA 35; (1916) 21 CLR 509, at p 551
But the power to overrule a prior
decision should be exercised with great caution and only in a
clear case - where, as it has been said, the prior decision is
'manifestly wrong' (The Tramways Case (No. 1)
[1914] HCA 15; (1914) 18 CLR 54, at p 58)"

11. For the reasons stated I am of opinion that the appeal should be allowed. (at p538)

GIBBS J. The present respondent, Dimiter Marinoff, was the appellant in an appeal to the Court of Appeal of the Supreme Court of New South Wales and the present appellant, Harry R. Bailey, was the respondent to that appeal. The formal material before us does not reveal the nature of the judgment appealed from, what were the grounds of appeal or whether Marinoff was guilty of culpable delay in prosecuting the appeal but it does appear that on 10th February 1970 the Court of Appeal made an order in the following terms:

"IT IS ORDERED that the Appellant file and serve the appeal
books herein on or before the 31st day of March 1970 AND IT
IS FURTHER ORDERED that if the Appellant does not file and
serve the appeal books herein on or before the 31st day of
March 1970 the appeal is to stand dismissed for want of
prosecution AND IT IS FURTHER ORDERED that the costs of
this motion be costs in the appeal of the Respondent."

"The Court or a Judge of Appeal may fix any time
peremptorily for the doing of an act required to be done by
an appellant by or under these rules, and may order that
upon non-compliance his appeal shall stand dismissed for
want of prosecution, and may make such order as to the
costs of the appeal in that event as appears just."

2. It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it: In re Suffield and Watts; Ex parte Brown (1888) 20 QBD 693; In re Swire; Mellor v Swire (1885) 30 Ch D 239; Preston Banking Co v William Allsup & Sons (1895) 1 Ch 141; Woods v Sheriff of Queensland (1895) 6 QLJ 163; Ivanhoe Gold Corporation Ltd. v. Symonds [1906] HCA 71; (1906) 4 CLR 642; MacCarthy v Agard (1933) 2 KB 417; Arnett v Holloway [1960] VicRp 6; (1960) VR 22 The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court. Indeed, as the way in which I have already stated the rule implies, the court has the power to vary an order so as to carry out its own meaning or to make plain language which is doubtful, and that power does not depend on rules of court, but is inherent in the court: Lawrie v. Lees (1881) 7 App Cas 19, at pp 34-35; Thynne v Thynne (1955) P 272, at p 313 Further, it has been held that a court may amend a part of a judgment or an order which is "not the operative and substantial part": Pearlman (Veneers) S.A. (Pty.) Ltd. v. Bernhard Bartels (1954) 1 WLR 1457; such an amendment, which may be far from being merely formal in its effect, could, as Singleton L.J. pointed out in Thynne v. Thynne (1955) P, at p 295, only be made under the inherent jurisdiction. Similarly the rule that a court may review an order made ex parte has been said to be "a rule of natural justice" (Woods v. Sheriff of Queensland (1895) 6 QLJ, at p 164) or "an elementary rule of justice" (Owners of the s.s. "Kalibia" v. Wilson [1910] HCA 77; (1910) 11 CLR 689, at p 694) and this can only mean that the power is traceable to the inherent jurisdiction. Moreover, it has been held that in certain cases circumstances occurring since the judgment may warrant the making of a supplemental order: Preston Banking Co. v. William Allsup & Sons (1895) 1 Ch, at p 144 and see Prestney v. Corporation of Colchester (1883) 24 ChD 376 and this seems to be another example of the inherent power. (at p540)

3. A similar, but distinct, rule has been evolved in cases in which an order has been made dismissing an action unless a condition, such as the delivery of a statement of claim or of particulars or of answers to interrogatories, is fulfilled within a specified time. Where in such a case the time has expired without fulfilment of the condition, it has been held that the judge who made the original order has no jurisdiction to make a subsequent order extending the time for fulfilment with the condition: Whistler v. Hancock (1878) 3 QBD 83; Wallis v Hepburn (1878) 3 QBD 84 (n); King v Davenport (1879) 4 QBD 402 Where the time has run out and the condition has not been fulfilled the action is regarded as being at an end and "the Court cannot, after the action is gone, entertain an application the result of which would be to set it on foot again": Script Phonography Co. Ltd. v. Gregg (1890) 59 LJ Ch 406, at p 407 However, in cases such as these there was found a way of avoiding the injustice which the rigidity of the rule might otherwise have caused. It has been held that the court may entertain an application for extension of time for appealing against the order to dismiss the action and after the time for appealing has been extended may on appeal vary the order by enlarging time for fulfilment with the condition: Burke v. Rooney (1879) 4 CPD 226; Carter v Stubbs (1880) 6 QBD 116; Johnson & Co. Ltd. v. Clifford (1904) 7 WAR 130; Nixon v W Phelan & Son Pty. Ltd. [1960] VicRp 14; (1960) VR 94; and see MacCarthy v Agard (1933) 2 KB, at p 428 (n) According to the Annual Practice 1970 (p. 296) this is frequently done in proper cases in England. It follows that in the case of a judgment made at first instance, although it might be right to say that "the court was enslaved by its own decree" (Thynne v. Thynne (1955) P, at p 315), an appellate court has power to strike off the fetters. According to the argument of the appellant in the present case however, an appellate court which has made an order conditionally dismissing an appeal must remain permanently enslaved by its own decree because there is no other tribunal which can free it from its self-imposed bondage. (at p541)

4. There are two cases in which a question similar to that which arises in the present appeal has been discussed in relation to an order made by an appellate court. In Meier v. Meier (1948) P 89, a wife who had obtained a decree nisi for divorce against her husband applied for an order for security of her costs of an appeal by her husband and the Court of Appeal directed that security should be provided by a specified date and that in the event of failure by the appellant to provide security, the appeal should stand dismissed. Owing to a mistake on the part of the appellant's solicitors, payment of the security was not made by the date ordered, with the result that the appeal against the decree nisi stood dismissed, and in due course the decree was made absolute. On learning the facts the appellant applied to the Court of Appeal to set aside the decree absolute and reinstate his appeal but it was held that there was no power in the Court to do so. That case is clearly distinguishable from the present, because it was there necessary to set aside a decree absolute before the appeal could be reinstated. Scott L.J. clearly based his judgment on this consideration. He said (1948) P, at p 94:

"In my view, the principle on which Parliament has treated
the decree absolute as sacred, applies in the present case and
must be acted on absolutely, because no sufficient reason exists
for departing from it: there is no ground for the exercise of
any inherent jurisdiction which the court may have and the
application must, therefore, be refused."

"The first question is whether the court has jurisdiction
to deprive a party of rights lawfully acquired under an order
of this court in circumstances of the most complete regularity
on the part of the party whom the court is asked to deprive
of his rights. It is said that there is inherent jurisdiction to
do this but I should want specific authority on the point.
There is no such authority and that fact weighs very strongly
against the submission that such a jurisdiction exists. In
principle, I think it is impossible to imply such a jurisdiction
and, the application must therefore be dismissed."

"I prefer not to attempt a definition of the extent of the
court's inherent jurisdiction to vary, modify or extend its
own orders if, in its view, the purposes of justice require that it
should do so. But the present case is not merely concerned
with the variation or the modification of the form of an
order as such, but relates to a particular order under which,
in the events which have happened, a pending appeal properly
stood dismissed and the petitioner in the divorce proceedings
acquired the status of a person in whose favour a decree
absolute for divorce had been granted. To justify this court
in taking the step of putting back the clock would require
something more than a variation of its order under its
inherent jurisdiction."

"In addition to powers resulting from rules of court, it is
clear that there are necessary powers which are inherent in
the jurisdiction of the court. It would, I think, be undesirable
to limit the scope of these powers as a result of any words
which describe them."

5. The second case arose in this Court: Goodwin v. Southern Tablelands Finance Co. Pty. Ltd. (1968) 42 ALJR 309 On 24th April 1968 the Full Court ordered that appeal books be lodged and certain documents served on the respondent on or before 30th June 1968 and further ordered "that in default of compliance with this order by 30th June 1968 or such later date as a Justice may appoint the appeal shall stand dismissed". The applicant having failed to comply with the order made application "for an order that the order made herein on the 26th April 1968, be varied by extending the time for the lodging of the appellant's Appeal Books herein . . . ." The application came before Kitto J. on 16th July 1968 and was dismissed. Kitto J. took the view that the application should be refused on the merits but he further said that as at present advised he did not see how he could, even if he had wished, grant an extension of time at that stage. He said:

"There is no pending appeal in this Court in which I can
act. The appeal stands dismissed by order of the Full Court
and, that being so, I cannot revive it and I do not think the
Full Court could revive it."

"As the hearing proceeded it became apparent that what
the appellant really wants is to vary the order made by the
Full Court on 24th April 1968, by virtue of which the appeal
was dismissed. It is not within the power of this Court to
vary that order. Once the appeal was dismissed, that was
the end of the matter."

6. The authorities to which I have referred leave no doubt that a superior court has an inherent power to vary its own orders in certain cases. The limits of the power remain undefined, although the remarks of Lord Evershed already cited suggest that it is a power that a court may exercise "if, in its view, the purposes of justice require that it should do so". Why should the limits of the power be drawn so narrowly as to preclude an appellate court from varying a conditional order to dismiss an appeal after the time for compliance with the condition has expired? I can think of only two reasons that may be suggested for holding that the inherent power of an appellate court does not extend to permit such a variation to be effected, but in my opinion neither of those reasons is satisfactory. First, it may be said that the authority of Whistler v. Hancock (1878) 3 QBD 83, and similar cases requires this conclusion. But in those cases the interests of justice did not render it imperative that the judge should have power to vary his own order, since there was power in an appellate court notwithstanding the lapse of time to remedy any injustice. Where, however, the order has been made by the appellate court itself the position is different, since if the appellate court cannot grant relief, none is available. The fact that this Court would have power to grant special leave to appeal from the order of the Court of Appeal made on 10th February 1970 may be put aside, having regard to the established principles that govern the grant of special leave. There is therefore a sound reason for refusing to extend decisions given in relation to orders made by single judges to the case of this order made by the Court of Appeal. Secondly, it may be said that there is some principle that once an appeal has been dismissed it is finally at an end and that the court which dismissed it has no power to vary its order os as to bring it into existence again. Although cases such as Whistler v. Hancock (1878) 3 QBD 83 and Script Phonography Co. Ltd. v. Gregg (1890) 59 LJ Ch 406 may appear to support such a principle, it is nevertheless firmly established that an action which has come to an end by reason of a judge's order conditionally dismissing it can be set on foot again by the order of an appellate court. If, to adopt the metaphor not infrequently used in these cases, the action becomes dead when the order dismissing it takes effect, it is not beyond revival. Indeed, to say that the appeal is dead, or at an end, seems to me, with all respect, to be beside the point, which is whether the inherent jurisdiction of the court permits it to vary the condition of an order dismissing an appeal after the condition has taken effect, and to say without more that because an appeal is at an end therefore no further order can be made is to beg the question. Clearly such an order might have been varied on the day before the condition took effect and it would seem strange if the power of the court were so limited as to make the order incapable of variation even one day after the condition had taken effect, no matter what unexpected misfortune might have prevented the party affected from complying with the condition. However I can see no reason in principle, and certainly none in justice or convenience, why an appellate court cannot vary the condition of an order dismissing an appeal, notwithstanding that the appeal has been dismissed before the variation is effected; the appeal may be at an end, but the power of the court remains, and an exercise of the power can reinstate the appeal. (at p545)

7. In the present case the Court of Appeal made an order varying its own former order in a matter of procedure for the purpose of giving effect to what it saw as the justice of the case. The order which it made was not contrary to any statute or rule of court. In my opinion neither authority nor principle constrains us to hold that the order so made was beyond the inherent jurisdiction of the Court. (at p545)

8. I would dismiss the appeal. (at p545)

ORDER