FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 (25 March 1988)

HIGH COURT OF AUSTRALIA

FAI GENERAL INSURANCE CO. LIMITED v. SOUTHERN CROSS EXPLORATION N.L. [1988] HCA 13; (1988)
165 CLR 268
F.C. 88/010

Practice (N.S.W.)

High Court of Australia
Wilson(1), Brennan(2), Deane(3), Dawson(4) and Gaudron(5) JJ.

CATCHWORDS

Practice (N.S.W.) - Order - Conditional - Self-executing - Directions -- Failure to comply - Power to extend time - Whether court functus officio - Supreme Court Rules 1970 (NSW) Pt 2, r 3, Pt 40, r 9(4), (5).

HEARING

1987, October 9; 1988, March 25. 25:3:1988
APPEAL from the Supreme Court of New South Wales.

DECISION

WILSON J. The trial in this matter commenced before Waddell J. (as his Honour then was) in the Equity Division of the Supreme Court of New South Wales on 13 March 1984. By March 1985 the hearing had occupied approximately 90 days and was nearing completion. On 15 April 1985 the plaintiffs (the present respondents) filed an application to set aside the proceedings on the ground that the preparation and conduct of their case had been prejudiced by the failure of one of the defendants (the present appellants) to give proper discovery to such an extent that it could not be seen that justice would be done if the trial were to continue.

2. The hearing of the application to set aside the proceedings occupied 50 days. It was dismissed on 14 August 1985. On 29 August 1985 directions were given for the plaintiffs to take, on or before 10 September 1985, certain steps for the further conduct of the trial. On 2 September 1985 they were ordered to give security on or before 1 October 1985 for the costs of the further trial of the proceedings and for the costs of the application to set aside the proceedings. In default of security being given the proceedings were to be stayed.

3. The plaintiffs failed to comply with the directions and the order for security. In due course the defendants applied to the Court for an order, pursuant to Pt 33, r.6 of the Supreme Court Rules, 1970 (N.S.W.) ("the Rules") and the Court's inherent power, to dismiss the proceedings on the ground of want of prosecution by the plaintiffs. The application was heard before Waddell J. on 26 and 27 February 1986. On 21 March 1986 the following order, inter alia, was made:

"1. The proceedings be and stand dismissed and
that the Plaintiffs pay the costs of the
Defendants of the proceedings (including
reserved costs) unless on or prior to 30 May,
1986 the Plaintiffs

(i) detailed particulars of facts, matters
and circumstances to be relied on by the
plaintiffs in support of any
application:-

(a) to re-open the plaintiff's case;

(b) to recall any witness other than
Mr L.J. Adler;

(ii) a statement containing the name of any
witness desired to be recalled and the
subject matter of the evidence sought to
be elicited from any such witness;

...

(c) provide security for the costs of the First,
Second, Third and Fifth Defendants of the
further hearing of the proceedings in the sum
of $99,000.00; and

(d) provide security for the costs of the
application to set aside the proceedings in
the sum of $184,500.00;

..."

4. On 30 May 1986 the plaintiffs made an application, heard by Kearney J., for an extension of time for compliance with the order of 21 March. The application was refused. On the same day, they furnished security in accordance with the order and served on the defendants a document which, it was later argued, complied with par.1(a) thereof.

5. By a motion filed on 12 June 1986 the plaintiffs sought a declaration that the proceedings had not been and did not stand dismissed, and for directions for the further conduct of the proceedings. When the motion was heard by the learned trial judge, now Waddell C.J. in Eq., on 23 June 1986, the plaintiffs sought and were granted leave to file a notice of motion returnable immediately seeking an order extending time for compliance with par.1(a) of the order of 21 March. On 30 June 1986 his Honour dismissed both motions with costs. He held that par.1(a) had not been complied with and that by virtue of its self-executing nature the proceedings had been effectively terminated. In the circumstances, the Court had no power to extend time.

6. The plaintiffs then filed three applications to the Court of Appeal of the Supreme Court of New South Wales, being applications -

(a) for an extension of time in which to seek leave to
appeal (and, if granted, for leave to appeal)
against the order of 21 March;

(b) for similar orders in regard to the order of
Kearney J. of 30 May; and

(c) for leave to appeal against the decision of
Waddell C.J. in Eq. given on 30 June.

7. All three matters came on for hearing on 13 November 1986. The Court dealt first with the application in respect of the order of 21 March. In the exercise of its discretion it refused that application, holding that the circumstances did not justify the granting of the extension of time sought by the plaintiffs. The hearing continued and the plaintiffs directed their submissions to the other applications.

8. The Court (Priestley J.A., Hope and Glass JJ.A. concurring), having earlier granted leave to appeal, allowed the appeal from the decision of Waddell C.J. in Eq. given on 30 June. It was held that, assuming the document filed on 30 May had failed to constitute compliance with par.1(a) of the order of 21 March and having regard to the provisions of Pt 2, r.3 of the Rules, his Honour had erred in holding that he had no power to extend the time for compliance with that order. Having come to that conclusion, the Court considered it to be expedient to remit the matter to the Equity Division in order that Waddell C.J. in Eq. could consider afresh the application to extend the time. It therefore declined to determine (unless and until it was necessary to do so) whether or not the particulars supplied on 30 May constituted compliance with the earlier order. In the light of these conclusions the Court held that there was little point in dealing with the application concerning the decision of Kearney J. given on 30 May. That application was therefore formally dismissed.

9. The appellants now appeal to this Court from the holding of the Court of Appeal that the provisions of Pt 2, r.3 of the Rules empowered Waddell C.J. in Eq. to extend the time allowed by the order of 21 March. On the other hand, the respondents seek special leave to pursue a cross-appeal directed to the question whether the document filed on 30 May constituted compliance. The Court decided to stand over the question of special leave pending the determination of the appeal.

10. It will be seen from this description of the course of events that the essential question requiring determination falls within a narrow compass. It focuses on the construction of the Rules, with particular reference to Pt 2, r.3 and the operation of that rule within the context of a trial. If the Court of Appeal is found to have been correct in its construction of the rule the appeal fails and there is no reason why the course charted by the Court of Appeal should not be followed. On the other hand, if the appeal succeeds, it is not suggested by the appellants that this Court should proceed to deal with the other questions in the case (in particular, the question whether the document supplied on 30 May constituted compliance with the order of 21 March) which have been put to one side in the Court below. The appropriate course, if the appeal succeeds, is to remit the matter to the Court of Appeal.

11. In 1878 the Divisional Court in England decided that where there is an order dismissing an action "unless" a condition is fulfilled within a specified time and that condition is not so fulfilled, the action is at an end and the judge or master who made the order has no jurisdiction either to set it aside or to extend the time for complying with it: Whistler v. Hancock (1878) 3 QBD 83. This was so notwithstanding O.LVII, r.6 of the Rules of the Supreme Court, which then provided that:

"A Court or a judge shall have power to enlarge or
abridge the time appointed by these rules, or fixed
by any order enlarging time, for doing any act or
taking any proceeding, upon such terms (if any) as
the justice of the case may require, and any such
enlargement may be ordered although the application
for the same is not made until after the
expiration of the time appointed or allowed."

12. Whistler was followed soon after in Wallis v. Hepburn (1878) 3 QBD 84n, King v. Davenport (1879) 4 QBD 402 and The Script Phonography Co. Ltd. v. Gregg (1890) 59 LJ Ch 406. However, the potential for injustice inherent in the rigid rule laid down in Whistler gave rise to a century of judicial dexterity based on highly artificial distinctions. Almost immediately, the Court of Appeal in Carter v. Stubbs (1880) 6 QBD 116 endorsed a procedure which had the effect of circumventing the Whistler rule. In reliance upon the same rule as was found to be unavailing in Whistler (i.e. O.LVII, r.6) the Court held that a judge had jurisdiction to enlarge the time in which to appeal against an order made by a master dismissing an action for want of prosecution, even after the order has taken effect and the action had therefore become dismissed. The Court held further that a judge had jurisdiction, once the time for appealing had been so enlarged, to vary or amend the master's order. This procedure has been adopted in a number of jurisdictions in Australia: Victoria (see, for example, Composite Buyers Ltd. v. J.C. Taylor Constructions Pty. Ltd. (1983) 2 VR 311; Maher v. Wallace Dairy Co. Ltd. (1984) VR 129); Queensland (K.G.K. Constructions Pty. Ltd. v. East Coast Earthmoving Pty. Ltd. (1985) 2 QdR 13, but note RSC O.45); South Australia (Hodak v. Bosman (1983) 36 SASR 164); Western Australia (Link Blocks Pty. Ltd. v. Fullin (1986) WAR 187).

13. In Collinson v. Jeffery (1896) 1 Ch 644 an order was made in a redemption action giving the plaintiff leave to lodge the mortgage money in court and that, "in default of such lodgment within two months from the date of this order, the action be dismissed with costs". The plaintiff failed to lodge the money in court until after the two months fixed by the order, but Kekewich J. held that the court had jurisdiction to extend the time on an application made by the plaintiff after expiry of the time in question. The Whistler cases were distinguished as being concerned with dismissal for want of prosecution.

14. The Whistler rule was distinguished by the Court of Appeal in Manley Estates Ltd. v. Benedek (1941) 1 All ER 248, where it was held that in a case where there is a default judgment which remains to be prosecuted to execution, the action is still in existence and a court therefore has jurisdiction to enlarge the time stipulated by the order in question. It has also been held to be inapplicable in a case where, a conditional order for the dismissal of an action not having been complied with, the order has not been taken out or judgment entered: see Baines v. State Bank of N.S.W. (1985) 2 NSWLR 729, at pp 735-736. Furthermore, differences of form in the wording of conditional orders have led to considerable diversity in decisions as to their effect. See, for example, Samuels v. Linzi Dresses Ltd. (1981) QB 115, at pp 125, 127; Freeman v. Rabinov (1981) VR 539, at p 543; Marshall v. Dunkley, unreported, Full Court of the Supreme Court of Queensland, 2 November 1984; K.G.K. Constructions, at p 17; Link Blocks, at p 189.

15. The Whistler rule was criticized by Lord Denning M.R. in Reg. v. Bloomsbury and Marylebone County Court; Ex parte Villerwest Ltd. (1976) 1 WLR 362, at p 366; 1 All ER 897, at p 900, where his Lordship said:

"I do not agree with that line of reasoning.
Even though the action may be said to cease to
exist, the courts (have) always power to bring it
to life again, by extending the time."

16. In Samuels, the Court of Appeal took up the challenge and overruled Whistler and the three cases immediately associated with it. Roskill L.J. (with whose reasons the other members of the Court agreed) noted, at pp 125-126, the "very artificial distinctions" which had followed those cases and the adoption by the Court of Appeal since the decisions in Allen v. Sir Alfred McAlpine & Sons Ltd. (1968) 2 QB 229 and Birkett v. James (1978) AC 297 of "a much more realistic approach to questions of striking out for want of prosecution". In England the position now is that a court has power to extend the time where a conditional order has been made but not complied with; but the power should only be exercised with caution and with due regard to the principle that orders are made to be observed. Samuels has been followed many times in England and was adopted by the New Zealand Court of Appeal in Champtaloup v. Northern Districts Aero Club (1980) 1 NZLR 673.

17. The question has arisen recently in two cases in the provincial courts in Canada. In Clam Bay Estates Limited v. State Mutual Life Assurance Company of America (1981) 45 NSR (2d) 586, Cowan C.J.T.D., sitting in the Trial Division of the Nova Scotia Supreme Court, after referring to Whistler and to Carter and citing the dictum of Lord Denning M.R. in Villerwest to which reference has already been made, held that the Court had inherent power to extend time notwithstanding that the terms of the order were that, failing compliance with its requirement, the action should stand dismissed without further order. In Reg. v. Blaker (1983) 6 CCC (3d) 385, the British Columbia Court of Appeal exercised jurisdiction to relieve against an order in a criminal case, which order had been duly entered, to the effect that if Blaker failed to file transcripts of evidence by a certain date his appeal would be dismissed for want of prosecution. However, the Court appears not to have disputed the Whistler rule and confined its finding of jurisdiction to the power of an appellate court to vary or set aside an order disposing of an appeal in a criminal case if the order was made on a basis other than on the merits.

18. This Court considered the effect of conditional orders in Goodwin v. Southern Tablelands Finance Co. Pty. Ltd., unreported, 1968 and Bailey v. Marinoff [1971] HCA 49; (1971) 125 CLR 529. In Goodwin it was ordered by the Full Court that an appeal should stand dismissed in default of the appellant lodging appeal books by a specified date. The order was not complied with and subsequently an application was made to Kitto J. to extend the time for lodging the books. Kitto J., in a short oral judgment, took the view that he had no power to act, saying:

"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 from this ruling to the Full Court was dismissed, Menzies, Windeyer and Owen JJ. (also in an ex tempore judgment) 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 the end of the matter."

19. Goodwin was followed in Bailey, where Menzies J. described the Whistler cases as "unquestionably rightly decided" (at p 532). The respondent Marinoff was the appellant in an appeal pending to the Court of Appeal of the Supreme Court of New South Wales. That Court ordered, inter alia, that "if (Marinoff) 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". The order was signed and sealed on 5 March 1970. Appeal books were filed by 31 March 1970 but they were not served until 6 April 1970. The Court of Appeal upon the application of Marinoff ordered that the filing and service of the appeal books be deemed a sufficient compliance with the earlier order. Bailey successfully appealed to this Court. Barwick C.J., who agreed generally with the reasons of Menzies and Walsh JJ., said, at pp 530-531:

"Once an order disposing of a proceeding has been
perfected by being drawn up as the record of a
court, that proceeding apart from any specific and
relevant statutory provision is at an end in that
court and is in its substance, in my opinion,
beyond recall by that court.... In my opinion,
none of the decided cases lend support to the view
that the Supreme Court in this case had any
inherent power or jurisdiction to make the order it
did make...".

Menzies J. said, at pp 531-532:

"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 (to) the making of orders in
litigation that has been brought regularly to an
end."

Owen J., in allowing the appeal, was in general agreement with the other Justices comprising the majority (see p 533). Walsh J., at p 534, stated that the question for decision was

"whether, as a matter of law, the Court (of Appeal)
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."

A majority of the Court took the view that Goodwin was both correct and determinative of the case at hand. Gibbs J. (as he then was) dissented and would have dismissed the appeal. His Honour said that the rule that a court has no jurisdiction to alter an order which has been made by it, and which has been passed, entered or otherwise perfected in a form which correctly expresses the intention with which it was made, is not inflexible and is subject to a number of exceptions. He noted that Goodwin was technically distinguishable from the one before him: in Goodwin, the self-executing order which it was sought to vary was made by the Full Court, whereas the application to vary it was made to a single judge. Gibbs J. then concluded that there was no valid reason to limit the inherent powers of an appellate court so as to preclude it from varying a conditional order to dismiss an appeal after the time for compliance with the condition has expired, and said, at pp 544-545:

"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."

20. Two aspects of the decision in Bailey are of importance to the present case. First, it is clear that the Court was concerned only with the inherent power of the Court of Appeal. Secondly, the case involved the powers of an appellate court, not of a judge at first instance.

21. In Gamser v. Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 the question arose as to whether the Court of Appeal of the Supreme Court of New South Wales had either inherent or statutory power to set aside and reopen a judgment given on appeal, by reason of new circumstances which occurred subsequent to the entry of judgment. This Court answered the question in the negative and, in so far as the inherent power was concerned, held that the decision in Bailey was conclusive of the matter (Gibbs J. holding himself bound to the majority view in that case). It is to be noted that Aickin J., with whose judgment Barwick C.J., Gibbs and Stephen JJ. agreed on this aspect of the case, described Bailey as holding that

"when an appeal has been finally disposed of in a
court of appeal by an order duly entered it has no
inherent power to reopen the case on an application
made after the order has been entered" (at p 154).

22. It is against this background that I turn to the construction of the rule upon which the respondents successfully relied before the Court of Appeal. Part 2, r.3 of the Rules reads as follows:

"3 (1) The Court may, on terms, by order, extend
or abridge any time fixed by the rules or by any
judgment or order.

(2) The Court may extend time under subrule
(1) as well after as before the time expires
whether or not an application for the extension is
made before the time expires.

..."

23. The plain meaning of these words is very wide. The Court may extend "any time" fixed by "any ... order" and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. As Baggallay L.J. said in Carter of the analogous English rule, it gives "very full discretionary power; indeed, I can hardly imagine a more extended discretion" (at p 120). It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance.

24. However, it was argued by counsel for the appellants that, by virtue of Pt 40, r.9 of the Rules, Pt 2, r.3 cannot be invoked to revive an action which stands dismissed. So far as material, Pt 40, r.9 provides as follows:

"(4) In addition to its powers under subrules (1),
(2) and (3), the Court may, on terms, set aside or
vary any order (whether or not part of a judgment)
except so far as the order determines any claim for
relief or determines any question (whether of fact
or law or both) arising on any claim for relief and
excepting an order for dismissal of proceedings or
for dismissal of proceedings so far as concerns the
whole or any part of any claim for relief.

(5) Nothing in this rule affects any other power
of the Court to set aside or vary a judgment or
order."

Counsel contended that subr.(4) explicitly defines, subject to subr.(5), the conditions and restrictions subject to which the court may set aside or vary an order. The order of 21 March constituted an order for dismissal and so fell within the second exception in subr.(4), thereby precluding an application by the plaintiffs under that subrule. Further, so the argument ran, an order under Pt 2, r.3 extending the time, after it has expired, for doing an act which an antecedent order required to be done neither varies nor sets aside that antecedent order, but operates of its own force. The order in the present case therefore did not fall within the ambit of subr.(5), which only applies to a power to "set aside or vary" a judgment or order. Consequently, reliance could not be placed upon Pt 2, r.3.

25. Accepting for the purposes of argument that an order to extend time in the present case would not set aside or vary the order of 21 March 1986 (and thus not fall within subr.(5)), it is equally true that the two exceptions in subr.(4) apply only to orders which do in fact "set aside or vary" an order. Thus, if the order to extend time does not fall within subr.(5), neither does it fall within subr.(4). In my view the submission based on Pt 40, r.9 cannot be accepted.

26. Counsel further contended that to find a power in Pt 2, r.3 to extend the time stipulated in a conditional order which has not been complied with would require more explicit language to that effect. In my opinion, that is not so. As I have said, the literal meaning of the rule is plain. It was recognized in Samuels, at pp 121, 127, that the decision in Whistler was contrary to the wording of O.LVII, r.6 which then applied. Cf. Knolinski v. Nelson (1918) 13 AltaLR 1, at p 6; Currie v. Canadian National Railways (1924) 2 WWR 196, at p 198; Kennedy v. Patron Oil Company Limited (1935) 1 WWR 559. If the rule is to be read down, it must be because the context of the rule or extraneous considerations compel such a course. Here there is no such compulsion.

27. But it remains to consider whether Goodwin, Bailey, Gamser or any other authority requires a narrow approach to Pt 2, r.3. Counsel for the appellants relied on the fact that although O.60, r.6 of the High Court Rules (which is the equivalent provision to Pt 2, r.3) was in force at the time of Goodwin, no reference is made to it in the judgments, the inference being that it was not thought to be relevant to the matter. However, it does not appear that the point was ever taken. Gibbs J. observed in Bailey, at p 543, that the applicant in Goodwin (the appellant before the Full Court) appeared in person before both Kitto J. and the Full Court and that, at least before the Full Court, counsel for the respondent was not called upon to address the Court.

28. Although Bailey gives a passing endorsement to the Whistler cases the Court was, as I have explained, dealing only with the inherent power of a court. No statutory rule was involved. And if a time-extending rule was relevant it would seemingly have been r.22 of the Court of Appeal Rules 1966 (N.S.W.), which, unlike Pt 2, r.3, does not expressly provide that time may be extended before or after the time set by the original order has expired. In any event it was Goodwin rather than the Whistler cases which provided the main support to the conclusion reached by the majority of the Court.

29. The authority of Bailey may also be limited by the fact that its subject matter was, as Aickin J. said in Gamser, in a passage to which I have already referred, an appeal which "has been finally disposed of in a court of appeal by an order duly entered". Indeed, the same may be said of Goodwin and Gamser. Counsel for the respondents did not press the Court to consider the correctness of the decision in Bailey and in the absence of argument directed to that question it is inappropriate for the Court to pursue the matter.

30. Gamser is also distinguishable from the present case. The question of extending time was not in issue and consequently the extent of the discretion conferred by Pt 2, r.3 did not arise.

31. Finally, reference should be made to the judgment of the Full Court of the Supreme Court of Victoria in Pollard v. Incorporated Nominal Defendant (1972) VR 955. The Court, at p 962, after referring to a number of cases, including Whistler and Bailey, expressed the opinion that

"once any proceedings, whether final or
interlocutory, have been concluded by a court order
which has fully taken effect so as to create new
rights and obligations as between the parties then
those proceedings may properly be treated as dead,
subject only to appeal".

Holding that view, the Court limited the power to enlarge time conferred by O.64, r.6 of the rules of court, a rule comparable though not identical to Pt 2, r.3, so as to have no application in such a case. For the reasons I have expressed, I am unable to take the same view of Pt 2, r.3.

32. In my opinion, the Court of Appeal was correct in holding that Waddell C.J. in Eq. had jurisdiction to extend the time prescribed by the order of 21 March. I would therefore dismiss the appeal. The application of the respondents for special leave to cross-appeal should remain adjourned.

BRENNAN J. I agree with the order proposed by Wilson J. for the reasons which his Honour gives. The question whether a court possessing no special statutory power to extend time is functus officio once the time for fulfilment of a condition specified in an order for dismissal has passed without the condition being satisfied does not have to be decided. But I should say that, in my respectful opinion, there is much force in the view expressed by Gaudron J. on this question.

DEANE J. I agree with the judgment of Wilson J.

DAWSON J. I agree with Wilson J.

GAUDRON J. The circumstances giving rise to this appeal are set out in the judgment of Wilson J. I need not repeat them.

2. The question raised in this appeal may be simply stated. Does Pt 2, r.3 of the Supreme Court Rules, 1970 (N.S.W.) ("the Rules") enable the Supreme Court of New South Wales to extend the time fixed by an order duly entered providing for the dismissal of proceedings in the event that some condition is not satisfied after the time fixed for the fulfilment of the condition has expired?

3. The rule relevantly provides:

"(1) The Court may, on terms, by order, extend or
abridge any time fixed by the rules or by any
judgment or order.

(2) The Court may extend time under subrule (1) as
well after as before the time expires whether
or not an application for the extension is
made before the time expires.

...".

4. It is submitted on behalf of the appellants that the rule should be construed as applicable only to proceedings still current. A proceeding in which a conditional order has been made and duly entered, it is argued, ceases to be current when the time stipulated for the fulfilment of that condition expires without the condition being fulfilled.

5. The argument that the rule should be so construed proceeds, not by reference to the words of the rule which are plainly wide enough to comprehend the presently disputed power, but by reference to the so-called self-executing nature of an order for conditional dismissal and by reference to the terms of Pt 40, r.9.

6. It is convenient to consider first the nature of conditional orders for dismissal of proceedings. Such orders for the dismissal of appeals have been considered by this Court on two occasions. In Goodwin v. Southern Tablelands Finance Co. Pty. Ltd., unreported, 15 August 1968, it was said that "(o)nce the appeal was dismissed, that was the end of the matter". That decision was confirmed in Bailey v. Marinoff [1971] HCA 49; (1971) 125 CLR 529, although Walsh J. (p 537) was prepared only to accord it the status that it "could not be regarded as being manifestly wrong". Gibbs J., who dissented in Bailey, noted (p 543) that in Goodwin the appellant had appeared in person and had cited no relevant authorities and considered that the Court should not regard itself as bound by the decision.

7. Although Goodwin and Bailey were concerned with conditional orders for the dismissal of appeals, and are thus technically distinguishable from the present case, in the latter case Barwick C.J. and Menzies J. appear to have relied on considerations applicable to all proceedings. Barwick C.J. said (p 530):

"Once an order disposing of a proceeding has been
perfected by being drawn up as the record of a
court, that proceeding apart from any specific and
relevant statutory provision is at an end in that
court and is in its substance, in my opinion,
beyond recall by that court. It would, in my
opinion, not promote the due administration of the
law or the promotion of justice for a court to have
a power to reinstate a proceeding of which it has
finally disposed."

Menzies J. stated (pp 531-532):

"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. ...

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 fulfilment
of the condition, were unquestionably rightly
decided."

8. The passages above quoted invite two comments. First, in so far as Barwick C.J. considered that a power to reinstate a proceeding would not promote the administration of law or justice, a distinction should, I think, be made between orders operating by way of final determination of the matters in issue and orders dismissing proceedings but leaving it open to a party to commence fresh proceedings. Subject to an exception not presently relevant, Pt 40, r.8(1) of the Rules expressly provides that "an order ... for the dismissal of proceedings so far as concerns any cause of action or the whole or any part of any claim for relief ... shall not, subject to any terms or conditions on which the order for dismissal is made, prevent the plaintiff or claimant from bringing fresh proceedings or claiming the same relief in fresh proceedings".

9. Where an order for dismissal does no more than effect a situation in which fresh proceedings may be brought (involving additional expense and duplication of court time if, as here, there has been a hearing as to the issues in dispute or some of them) then it seems to me that the administration of law and justice may be well served by a power to reinstate proceedings. That consideration, particularly having regard to the terms of Pt 40, r.8(1), provides part of the context in which Pt 2, r.3 should be construed.

10. Secondly, the cases cited by Menzies J. were overruled by the Court of Appeal in Samuels v. Linzi Dresses Ltd. (1981) QB 115, Roskill L.J. (at p 126) and Lawton L.J. (at p 127) pointing out that the decisions in the earlier cases had been given before the new practice under the Supreme Court of Judicature Acts 1873 and 1875 had fully developed, and that the interpretation in Whistler and Wallis of O.LVII, r.6 of the Rules of the Supreme Court (similar in terms to Pt 2, r.3 of the Rules) may have been influenced by the old practice. This does not necessarily mean that the actual decisions in Goodwin and Bailey were wrong: although at the time of the decision in Goodwin the High Court Rules contained O.60, r.6 which is similar in terms to O.LVII, r.6, the application was treated as an application to vary an earlier order and not as an application for enlargement of time; Bailey was concerned only with the inherent power of the Supreme Court of New South Wales, the present Rules not then having come into effect. However, it does emphasize that the decisions in Goodwin and Bailey have no necessary bearing on the proper interpretation of Pt 2, r.3.

11. The substance of the argument made on behalf of the appellants is that a proceeding passes outside the power of a court once the time for fulfilment of a condition specified in a duly entered order for dismissal has passed without the condition being satisfied, that is that the court is then functus officio. See Reg. v. Cross (Patrick) (1973) QB 937.

12. Although the rule that a court may not vary a duly entered order which brings proceedings to a conclusion rests, at least in part, on the obvious desirability that litigation should be brought to an end, the converse of that rule viz. that a court of record may vary an order before the order is entered must rest on the notion that a court is not functus officio whilst there remains any judicial function which may be performed in relation to a proceeding, even if it be only that of ensuring that the final order correctly records the meaning of the court. Thus it was put by Coke (Co. Litt. 260a):

"Of courts of record you may read in my Reports:
but yet during the terme wherein any judiciall act is
done, the record remaineth in the brest of the
judges of the court, and in their remembrance, and
therefore the roll is alterable during that terme,
as the judges shall direct; but when that terme is
past, then the record is in the roll, and admitteth
no alteration, averment or proofe to the contrarie."

13. Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which such an order has operated as "dead", that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the court is functus officio. That being so, there seems to me no relevant distinction between a proceeding in which a conditional order for dismissal has been entered and a proceeding in which an order has been made but not entered, notwithstanding the decisions in Goodwin and Bailey. However, it is neither necessary nor appropriate to pursue that issue, the respondents having made their case without direct challenge to the actual decisions in those cases.

14. Where a power or discretion is conferred upon a court it is inappropriate that such power or discretion be treated as subject to limitations not contained in the grant of that power or discretion. The position was put, in relation to statutory discretion, by Earl Loreburn L.C. in Hyman v. Rose (1912) AC 623, at p 631 in these words: "It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all."

15. There may be occasions when it is appropriate to
approach the question of the proper meaning of the grant of power on the basis that only the clearest express intention can displace fundamental legal principle or basic policy consideration. However, as a conditional order for dismissal such as that presently under consideration neither renders the Court functus officio nor of itself precludes the bringing of fresh proceedings there is no question of fundamental legal principle or policy brought into issue by the grant of power in Pt 2, r.3. That being so, and the language of the rule being such as to comprehend the power, Pt 2, r.3 must be construed as authorizing the Court to enlarge the time fixed by a duly entered conditional order for dismissal notwithstanding that the time so fixed has expired, unless such authority is expressly excluded by statute or other rule of court.

16. It remains to be considered whether Pt 40, r.9 excludes the exercise of the general power to extend time when the time sought to be extended is fixed by a duly entered order for conditional dismissal and the time has expired. The rule relevantly provides:

"(4) In addition to its powers under subrules (1),
(2) and (3), the Court may, on terms, set
aside or vary any order (whether or not part
of a judgment) except so far as the order
determines any claim for relief or determines
any question (whether of fact or law or both)
arising on any claim for relief and excepting
an order for dismissal of proceedings or for
dismissal of proceedings so far as concerns
the whole or any part of any claim for relief.

(5) Nothing in this rule affects any other power
of the Court to set aside or vary a judgment
or order."

17. If an order enlarging time fixed by a conditional order for dismissal amounts to a setting aside or variation of an order for dismissal, then the power to make such an order is expressly saved by subrule 5. If it does not amount to a setting aside or variation then it does not fall within the terms of subrule 4. On no basis can it be said that Pt 40, r.9 amounts to an exclusion of the general power conferred by Pt 2, r.3.

18. The appeal should be dismissed. The respondents' application for special leave to cross-appeal should stand adjourned.

ORDER

Appeal dismissed with costs.