Harrison v Schipp [2002] NSWCA 78 (21 June 2002)

Last Updated: 24 June 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Harrison v Schipp [2002] NSWCA 78

FILE NUMBER(S):

40814/01

40728/98

40761/98

HEARING DATE(S): 12 March 2002, 15 May 2002

JUDGMENT DATE: 21/06/2002

PARTIES:

George Andrew Harrison

Emibarb Pty Limited

v

Delcie Joan Schipp & Ors

JUDGMENT OF: Handley JA Giles JA Ipp AJA

LOWER COURT JURISDICTION: Reference under SCR Pt 12 r 2

LOWER COURT FILE NUMBER(S): EQ 6425/91

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

S J Gageler SC/G Lucarelli (Plaintiffs)

M J Slattery QC/J M Hennessy/S Fendikian (Defendant)

SOLICITORS:

Blake Dawson Waldron (Plaintiffs)

Dibbs Barker Gosling (Defendant)

CATCHWORDS:

EQUITY - solicitors - business dealings with clients

EQUITY PROCEDURE - bill of review for fresh evidence - whether still available

EVIDENCE - requirements for fresh evidence

PROCEDURE - court has no power to reconsider perfected judgments

SOLICITORS - business dealings with clients

LEGISLATION CITED:

Equity Act 1880 (NSW)

Equity Act 1901

Judicature Act 1873 (UK)

Supreme Court Act 1970

DECISION:

Proceedings dismissed with costs.

Direct that these orders be entered forthwith.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40814/01 (40728/98 ED 6425/91)

(40761/98 ED 6425/91)

HANDLEY JA

GILES JA

IPP AJA

21 June 2002

GEORGE HARRISON & ANOR v DELCIE JOAN SCHIPP & ORS

EQUITY - solicitors - business dealings with clients

EQUITY PROCEDURE - bill of review for fresh evidence - whether still available

EVIDENCE - requirements for fresh evidence

PROCEDURE - court has no power to reconsider perfected judgments

SOLICITORS - business dealings with clients

The plaintiffs, who were unsuccessful defendants in earlier proceedings heard by Einstein J, and were unsuccessful in an appeal from that decision to the Court of Appeal, commenced fresh proceedings in the Equity Division, after the earlier orders had been entered, seeking to have those orders set aside and to obtain a new trial of the original proceedings on the ground of the discovery of fresh evidence. They did not allege fraud. The new proceedings were referred to the Court of Appeal pursuant to SCR Pt 12 r 2 and the question to be decided was whether a Judge of the Equity Division had the power or jurisdiction to grant the relief sought. The plaintiffs claimed that the bill of review procedure of the Court of Chancery prior to the Judicature Act 1873, which enabled an enrolled decree of that Court to be reviewed on the ground of the discovery of fresh evidence, was still available in New South Wales. The jurisdiction was last invoked in New South Wales in Hosking v Terry [1862] EngR 903; (1862) 15 Moore PC 493 [15 ER 581].

HELD: Dismissing the proceedings, that the power or jurisdiction to commence fresh proceedings at first instance to review a judgment after it had been entered on the ground of the discovery of fresh evidence ceased to be available in New South Wales following the Equity Act 1880 and the Court had no power to grant the relief sought in these proceedings. In any event, the evidence relied on by the plaintiffs was not fresh.

CONSIDERED: The position in equity of solicitors who enter into business transactions with their clients and the Court's jurisdiction or power to set aside perfected judgments on the ground of fraud.

ORDERS

(1) Proceedings dismissed with costs.

(2) Direct that these orders be entered forthwith.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40814/01 (40728/98 ED 6425/91)

(40761/98 ED 6425/91)

HANDLEY JA

GILES JA

IPP AJA

21 June 2002

GEORGE HARRISON & ANOR v DELCIE JOAN SCHIPP & ORS

Judgment

1 HANDLEY JA: On 23 August 2001 Mr Harrison and Emibarb Pty Limited commenced proceedings by statement of claim in the Equity Division (the new proceedings) which as amended claimed the following, amongst other relief:

"1. an order that orders numbers 1 and 7 made by Einstein J on 9 September 1998 in matter number 6425 of 1991 (at Red Appeal Book 2 468S-469F) be set aside.

2. an order that order No. 2 of the Court of Appeal made on 20 February 2001 in matters numbers 40728 of 1998 and 40761 of 1998 (at Red Book 80L-N) be set aside.

3. an order that order number 5 of the Court of Appeal made on 20 February 2001 in matters numbers 40728 of 1998 and 40761 of 1998 (at Red Book 80T-U) be set aside and in lieu thereof order that the cross-appellant pay the first and second cross-respondents' costs of the cross-appeal.

4. an order that there be a new trial".

2 The orders in the earlier proceedings (the orders) had been entered and the statement of claim does not allege that they were obtained by fraud. At first sight the new proceedings appear to be fundamentally misconceived. The orders having been entered, the general principle is that stated by Barwick CJ in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 530:

"Once an order disposing of a proceeding has been perfected by being drawn up as the record of the 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".

3 This decision was followed in Gamser v The Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145, where Aickin J said at 154:

"... 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. That general proposition is no doubt subject to the rule that a judgment apparently regularly obtained may be impeached upon the ground of fraud, and there would seem to be no reason why that rule should not also apply to judgments on appeal ... the majority judgments in Bailey v Marinoff appear to me to make it clear that there is no inherent power to set aside judgments by reason of changed circumstances on application made after the case has been finally disposed of ... In this court it was argued that the cases there relied upon did not cover the situation of fresh evidence and that fraud was in truth an example or category of fresh evidence, but the cases do not recognise such a principle and indeed are inconsistent with it".

4 The position in Australia is governed by these decisions and cannot, in this Court, be affected by the decision of the Court of Appeal in Taylor v Lawrence [2002] EWCA Civ 90; [2002] 2 All ER 353 which has become available since the Court heard argument on the legal issues in this case.

5 The law of res judicata leads to the same conclusion. Mrs Schipp's causes of action against the present plaintiffs have been litigated to a final judgment which has created one or more cause of action estoppels. These operate for and against the parties bound by the estoppel to preclude further litigation on that cause of action. The bar created by a cause of action estoppel is absolute. See Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502, 504-5; Arnold v National Westminster Bank plc [1991] 2 AC 93. In the latter case Lord Keith said at 104:

"In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened".

6 The plaintiffs have attempted to support the new proceedings as an action for review on the ground of fresh evidence based on the former procedure in the Court of Chancery by bill of review for new matter. Fresh evidence or new matter means evidence which could not have been discovered earlier by the exercise of due diligence, and which, if received, would probably lead to a different result.

7 On 4 October 2001 a Registrar of the Equity Division ordered that the new proceedings be removed into the Court of Appeal pursuant to SCR Pt 12 r 2 and stated the following as the question to be decided: "Whether a single Judge of the Equity Division has the power, or the jurisdiction, to grant the relief sought in the amended Statement of Claim?"

8 A bill of review, based on the discovery of new matter since the trial, was a remedy available in the Court of Chancery prior to the Judicature Act 1873, which enabled a decree that had been enrolled to be varied or reversed by the judge who pronounced it or his successor. The proceedings could only be brought with the leave of the Court. Where the decree had not been enrolled, relief could be obtained on the same grounds by a supplemental bill in the nature of a bill of review, filed with the leave of the Court. These remedies were available in the Supreme Court of this State at an early stage of its history, although the procedure appears to have been last invoked here in 1859 in proceedings which reached the Privy Council in 1862. See Hosking v Terry [1862] EngR 903; (1862) 15 Moore PC 493 [15 ER 581].

9 In England there has been no recorded case since the Judicature Act, with the exception of the decision of Kekewich J in In re Scott & Alvarez's Contract [1895] 1 Ch 596, where an action for review on the ground of fresh evidence has succeeded, and that decision was reversed on other grounds. See In re Scott & Alvarez's Contract [1895] 2 Ch 603 CA.

10 In 1973 the Court of Appeal held in In re Barrell Enterprises [1973] 1 WLR 19 that the jurisdiction previously exercised by the Court of Chancery on a bill of review had been vested by the Judicature Act in the Court of Appeal to the exclusion of the High Court. The Court, in a judgment delivered by Russell LJ, added at 27:

"Even if, technically, the High Court was at first clothed with this jurisdiction we are of opinion that this cause of action has long since lapsed because applications for rehearing on the ground of fresh evidence have for generations been made only to the Court of Appeal".

11 I am not aware of any legal principle which could cause a superior Court of general jurisdiction to lose part of its jurisdiction or power by lapse through lack of use, but this difficulty does not affect the reasoning of the Court of Appeal on the effect of the Judicature Act.

12 The Federal Court considered whether this remedy continued to be available in Monroe Schneider Associates Inc v No. [1992] FCA 367; 1 Raberem Pty Limited (No 2) (1992) 37 FCR 234 at 238-40, but did not find it necessary to express a concluded view.

13 For a long time decisions of the Lord Chancellor could not be reviewed by any higher tribunal, but in the reign of Charles II jurisdiction to hear appeals from the Lord Chancellor was conferred on the House of Lords. See Charles Bright & Co Ltd v Sellar [1904] 1 KB 6, 11. However, there were other avenues for challenge available to aggrieved litigants which included a rehearing on the original materials on a petition filed before the decree was enrolled. See Daniell's "The Practice of the High Court of Chancery" 5th Ed 1871 (Daniell), at 1340-1, 1342, 1344, 1345. Originally the rehearing took place before the Lord Chancellor or his successor (ibid 1339). When the original jurisdiction of the Court of Chancery became exercisable by the Master of the Rolls or one or more Vice-Chancellors, the rehearing could take place before the same judge or his successor or the Lord Chancellor, or later the Court of Appeal in Chancery (Daniell at 1339, 1342-3). The Master of the Rolls could not rehear a decree of the Lord Chancellor, or of a Vice-Chancellor, nor could a Vice-Chancellor rehear a decree of the Lord Chancellor, the Master of the Rolls or any other Vice-Chancellor (Daniell at 1343, 1346).

14 If the decree had been enrolled, limited relief was still available by a bill of review. Such a bill could be brought for error apparent, that is an error of law appearing in the decree itself, or for some new matter which had arisen since the decree, or, with the prior leave of the Court on discovery of new matter. On an application for leave the Court had to be satisfied that the matter newly discovered was relevant and material, such as might probably have occasioned a different determination, and that it was not discoverable by due diligence before the trial (Mitford "A Treatise on the Pleadings in Suits in the Court of Chancery" 5th Ed 1847 (Mitford) at 101-2, Daniell at 1422-3).

15 The Lord Chancellor exercised appellate jurisdiction in respect of the decrees and orders of the Master of the Rolls and the Vice-Chancellors, but later the Court of Appeal in Chancery was established with appellate jurisdiction co-ordinate with that of the Lord Chancellor. The appeal to the Lord Chancellor or the Court of Appeal was in reality a rehearing before the higher court (Daniell at 1343; and see also Brown v Higgs (1803) 8 Ves 561, at 563 in the argument of Mr Romilly, and at 566 per Lord Eldon LC, [32 ER 473, 474, 475]).

16 The scope of the jurisdiction to hear bills of review was not clear. Mitford at 105 and Daniell at 1424 stated that a bill of review for new matter had been permitted even after the decree of the Lord Chancellor had been affirmed by the House of Lords but the cases cited in both works, Barbon v Searle (1686) 1 Vern 416 and Willan v Willan [1810] EngR 196; (1810) 16 Ves 72 [33 ER 911] do not support this. However in Hosking v Terry [1862] EngR 903; (1862) 15 Moore PC 493 [15 ER 581], on an appeal from the Full Court of the Supreme Court of New South Wales, Lord Kingsdown said at 510-1 [587]:

"... the local Act ... only means that an order shall be final and conclusive in the same sense as an order of the House of Lords affirming a decree in Chancery is in this country final and conclusive. Such an affirmance does not preclude a Bill of Review".

The Full Court had allowed the respondent to challenge a decree that had been affirmed by the Privy Council, but this did not bar a bill of review based on the discovery of fresh evidence.

17 A supplemental bill, in the nature of a bill of review, based on the discovery of new matters since a decree of the Master of the Rolls, could be heard by the Lord Chancellor, together with a petition to rehear or appeal. See Moore v Moore [1755] EngR 100; (1755) 2 Ves Sen 596, 598 [1755] EngR 100; [28 ER 380, 382]; Perry v Phelips (1810) 17 Ves 173, 178 [ER 67, 69]; Jopp v Wood (1865) 2 De G J & S 323, 326, 329 [1865] EngR 673; [46 ER 400, 401, 402]. On the other hand in Head v Godlee (1859) 1 Johns 536 [70 ER 534], Page-Wood V-C dismissed on the merits a supplemental bill in the nature of a bill of review arising from a decree made by the Master of the Rolls in 1813 (at 538-9, [535]), but held that he had no jurisdiction to rehear that decree (at 578, [550]).

18 A litigant could impeach a decree obtained by fraud by an original bill in Chancery. This was not a bill of review and could be filed without leave. The fraud used was the principal point to be established (Mitford at 97, 112-3, Daniell at 1428-9). Where this was proved the Court would rescind the decree and restore the parties to their former situation whatever their rights might be (Birne v Hartpole [1717] EngR 48; (1717) 5 Brown PC 197, 200 [1717] EngR 48; [2 ER 624, 626]). In Barnsly v Powell [1748] EngR 386; (1748) 1 Ves Sen 119, 120 [1748] EngR 386; [27 ER 930], Lord Hardwicke LC said:

"There are several instances of relief, notwithstanding a former decree, if obtained by fraud and imposition, which infects judgments at law and decrees of all courts, and annuls the whole in the consideration of this Court".

19 See now Hip Foong Hong v H Neotia & Co [1918] AC 888, 894; Jonesco v Beard [1930] AC 298, 301-2; McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529, 542; and Toubia v Schwenke [2002] 54 NSWLR 46.

20 The Judicature Act 1873 created the High Court of Justice and s 16 transferred to it the former jurisdiction of the High Court of Chancery. However s 18, which established the Court of Appeal, provided in sub s 1 that "all jurisdiction and power of the Lord Chancellor and of the Court of Appeal in Chancery, in the exercise of his and its appellate jurisdiction" was transferred to the Court of Appeal.

21 In Flower v Lloyd (1877) 6 Ch D 297 the plaintiff, who had lost in the Court of Appeal, applied by motion for that Court to rehear the appeal on the ground of fraud and for leave to adduce further evidence. The Court refused the motion on the ground that it sought an exercise of original jurisdiction which the Court did not possess, its only original jurisdiction being incidental to the exercise of its appellate jurisdiction. All members of the Court referred to the remedy by action to set aside or rescind a judgment for fraud, but Sir George Jessel MR also referred (300) to the old remedy by bill of review where matter was discovered which showed that the decree was wrong although there had been no fraud in obtaining it.

22 In In re St Nazaire Co (1879) 12 Ch D 88, following earlier proceedings and an unsuccessful appeal to the Court of Appeal, persons bound by the orders presented a petition to have the original orders of the High Court discharged or varied on the ground of further evidence. The relevant orders of Malins V-C had been entered. During argument Sir George Jessel MR said (91):

"A judge can always reconsider his decision until the order has been drawn up. What you have to make out is that the old practice in Chancery of a Judge rehearing his own decisions exists under the Judicature Acts".

23 Counsel argued that if the prayer for a rehearing were struck out, the High Court still had jurisdiction because the proceeding was analogous to a bill of review (92). The Master of the Rolls began his judgment by saying (93):

"The petition before us in this case may be roughly described as a petition of appeal from an order made by the Appeal Court".

At 96-7, he said:

"... it is a petition presented to a Judge of the High Court to rehear a decision of the Appeal Court, I should have thought that the mere statement of that would be sufficient to shew that the Judge below had no jurisdiction. It would be a wonderful result indeed if the Judicature Act empowered a Judge of an inferior Court to rehear a decision of the Appeal Court which perhaps had reversed his decision".

24 He referred (97) to the old practice of the Court of Chancery under which the judges could rehear "not only their own decrees, but the decrees of their predecessors, that is, those whom they succeeded". He said there was also an appeal from their decisions to the Lord Chancellor "but of course they could not alter his decisions" (98).

25 The Master of the Rolls then considered the nature of the right of rehearing and held that it was appellate jurisdiction, even though it was sometimes an appeal from a judge to himself, but more frequently an appeal from a judge to his successor (98). After referring to the relevant sections of the Judicature Act 1873, he continued (99-100):

"Now the jurisdiction and powers of the Lord Chancellor were undoubtedly included in the jurisdiction of the High Court of Chancery; and if the Court of Appeal is to have the appellate jurisdiction of the Lord Chancellor and the Court of Appeal in Chancery is it reasonable to suppose that part of the appellate jurisdiction vested in the High Court of Chancery ... was transferred to the Judges of the High Court with the remarkable consequence I have already referred to? I am satisfied upon a fair reading of the Act ... we ought to come to the conclusion that the Court below has no such jurisdiction ... There is no appeal at all to the Judge of the Court of first instance against any decision, either of his predecessor or of the Appeal Court. In fact, the only surprising part of the matter is that anyone should have thought for a moment that a rehearing of this kind, involving a discharge, though not precisely in express terms, of an order of the Appeal Court, could be presented to a judge of the Court of first instance".

26 Baggallay LJ agreed, and said that "the power of rehearing is vested in the Court of Appeal, and in that Court alone" (100-1). Thesiger LJ also agreed and said that: "Once the Common Law Division of the High Court of Justice has pronounced the decision ... there is no power in that Division of the High Court to rehear or review that decision upon any suggestion that it has been misled, or that the parties have not brought all the evidence which ought to have been brought in order to enable the Court to arrive at a just conclusion". He added that if that could not be done in the Common Law Division of the High Court it could not be done in the Chancery Division either (emphasis supplied).

27 In re St Nazaire Co established that the jurisdiction or power of the Court of Chancery to rehear or review its decrees after they were entered was appellate and had been transferred to the Court of Appeal. It also established that the High Court had no jurisdiction or power to rehear or review decisions of the Court of Appeal. This decision was approved in DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226, at 244 where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:

"The Court of Chancery had power to re-open and rehear cases which had been tried before it, even after the decree had been entered. [This was a reference to the bill of review procedure.] The right of rehearing in the Court of Chancery had involved the exercise of appellate rather than original jurisdiction. Sir George Jessel MR so concluded in In re St Nazaire Co. However that peculiar state of affairs in Chancery did not continue with respect to the exercise of equitable jurisdiction by the Supreme Court of Judicature established by the Judicature Act 1873 (UK). The structure it provided included the Court of Appeal".

28 It is well established, as Sir George Jessel MR said in argument in In re St Nazaire Co, that a judge can always reconsider his decision until his order has been drawn up. The absence of any power in the High Court to rehear a matter after the order has been entered was affirmed in In re Suffield and Watts Ex parte Brown (1888) 20 QBD 693, 696. At 697, Fry LJ said:

"In re St Nazaire Co shews that, when an order or judgment of the High Court has once been perfected, the court has no jurisdiction to alter it. So long as the order has not been perfected the Judge has a power of re-considering the matter, but, when once the order has been completed, the jurisdiction of the judge over it has come to an end".

29 At 698, Lopes LJ said:

"In re St Nazaire Co shews that, when once an order of a Judge of the High Court has been drawn up and perfected, the Judge has no jurisdiction to vary or discharge it".

30 In Preston Banking Company v William Allsup & Sons [1895] 1 Ch 141 at 143, Lord Halsbury said:

"... this is an application to the Vice-Chancellor in effect to rehear an order which he intended to make, but which, it is said, he ought not to have made. Even when an order has been obtained by fraud, it has been held that the Court has no jurisdiction to rehear it. ... The fact that in the present case the application to rehear is made to the particular Judge who made the order is immaterial; for if one Judge can rehear the order another can". (emphasis supplied)

31 At 144, Lindley LJ said:

"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". (emphasis supplied)

32 A L Smith LJ said, at 144-5:

"... it is an application that he should rehear the order made and perfected, and make another in its place. In my opinion the judge had no jurisdiction to do this ... Fry LJ put the law on the right foundation when he held, in In re Suffield and Watts that so long as the order has not been perfected, the judge has a power of reviewing the matter, but when once the order has been completed the jurisdiction of the judge over it has come to an end". (emphasis supplied)

33 The power of a Court to review its decision before its orders are entered was again considered in In re Harrison's Share Under a Settlement [1955] Ch 260 where Jenkins LJ, delivering the judgment of the Court of Appeal, said at 276:

"We think that an order pronounced by the judge can always be withdrawn, or altered, or modified by him until it is drawn up, passed and entered. In the meantime it is provisionally effective".

34 The Court referred with approval to In re St Nazaire Co, In re Suffield and Watts and Preston Banking Co v William Allsup & Sons (282), and said (283):

"It is important to remember that in the ordinary way the recall of an unperfected order results in a rehearing at which all parties can present such further arguments as they may be advised having regard to the matter, whatever it may be, which is [thought] to cast doubt on the correctness of the order as orally pronounced". (emphasis supplied)

35 All this is established law in Australia. In Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 265, Brennan, Dawson, Toohey and Gaudron JJ said:

"The orders of 9 May 1991 had not been entered when the appellant made his application for re-opening. It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected ... the power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review ... It is important that it be understood that these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature of the review to be undertaken once the case is re-opened ...

It is said in Ritchie's Supreme Court Procedure that the power to review a judgment in a case where the order has not been entered will not ordinarily be exercised `to permit a general re-opening'. As a general statement that is correct, both as to whether leave to re-open will be granted and, if it has been, as to the nature of the review involved. But it is a general statement only and, once a matter has been re-opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken". (emphasis supplied)

See also DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226, 244, 245 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, and pars 2 and 3 above.

36 Thus the old power of rehearing in the Court of Chancery before the decree had been enrolled is still available to the Court that pronounced the orders.

37 The remedy in the Court of Chancery where new matter was discovered, but the decree had not been enrolled, was a supplemental bill in the nature of a bill of review coupled with a petition for rehearing on the original materials, so that the Court could make whatever decree was appropriate on the whole of the material. See Mitford at 108-112, Daniell at 1342, 1425. Proceedings on a bill of review for new matter, where the decree had been enrolled, also involved a rehearing of the whole of the material, because the original decree could be affirmed, reversed or altered (Mitford at 101-2, Daniell at 1422). However if the plaintiff established on an original bill that a decree had been obtained by fraud the Court did not rehear the case but simply set aside the decree.

38 The jurisdiction or power of the High Court to entertain an action for review based on the discovery of fresh evidence was assumed in Re May (1883) 25 Ch D 231, (1885) 28 Ch D 516 CA where leave to commence such an action was refused, but the question was not argued and In re St Nazaire Co was not cited.

39 In Falcke v The Scottish Imperial Insurance Co (1887) 57 LT 39 at 39-40, Kay J said that the old jurisdiction of the Court of Chancery to entertain a bill of review for new matter had not been affected by the Judicature Act, and the application had to be made to the High Court, although the decision sought to be challenged had been given by the Court of Appeal. The application failed on the merits. The views of Kay J on the question of jurisdiction were contrary to the decision in In re St Nazaire Co (para 27) that a judge of the High Court had no jurisdiction to rehear or review a decision of the Court of Appeal, and the practice of the Court of Chancery of conducting a full rehearing on a bill of review for new matter (par 37).

40 In Boswell v Coaks (No 2) (1894) 6 R 167, 86 LT 365 n HL, an action was brought in the High Court to set aside a judgment of the House of Lords on the ground that it had been obtained by the fraud of the defendant. The new action had been summarily dismissed by North J and the Court of Appeal. Lord Selborne, who delivered the principal speech in the House of Lords, referred to the earlier decision of the House and said at 168 (366):

"The judgment is binding: it is a final and conclusive protection against further litigation to the party in whose favour it is passed, unless some adequate ground can be shown in support of a proceeding to set it aside in due course of law. I am not at all prepared to say that such a proceeding would be impossible. There are two classes of cases, perhaps, which ought to be distinguished for this purpose. One is that ... in which by the collusion of the parties the process of the courts has been abused ... The present case falls within the second class - namely where it is not sought to treat as a nullity what has passed, but to undo it judicially upon judicial grounds treating it as in itself, and until judicially rescinded, valid and final".

41 He continued at 169-70 (366):

"I will not lay stress upon its being a judgment of this House in the present case, because I think it right to assume that, if a judgment ... of the High Court is in a proper way proved at the hearing of the cause to have been obtained by fraud, it is one which the Court can remedy ... Upon that point ... the Court ought to receive such evidence pro and con as is material to the question whether there has really been, since the former judgment, a new discovery of something material in this sense, that prima facie it would be a reason for setting the judgment aside if it were established by proof".

42 He considered the material "that it is proposed to offer in evidence of fraud and misrepresentation" (170, 366). At 171 (367) he said that the fraudulent intent of the respondent was not enough, and that "it must appear to the Court that that which was abstracted was material". He concluded that nothing material had been newly discovered by the plaintiff and the appeal was dismissed.

43 Lord Selborne referred at some length to the bill of review procedure. He said at 169 (366):

"The old practice of the Court of Chancery applicable to bills of review may not be, and I assume for the present purposes that it is not, now in use. A simpler and less formal and technical code of procedure generally has been adopted which does not expressly require a preliminary application to the Court when a proceeding in the nature of a bill of review to set aside a formal judgment otherwise final is taken. The same new code of procedure, while omitting to repeat the old rule of the Court requiring leave to be given for the commencement of such an action, contains this other power of an equally summary nature, that the defendant ... can apply to the Court ... to stay its further prosecution ... I conceive that the principles applicable to an old bill of review ought to be kept in mind and ought to be applied in their full force, and even with greater freedom than before, when an application of this kind is made to stay the prosecution of an action to get rid of the former judgment".

44 Fraud had been alleged, and the only grounds for setting aside a final judgment which Lord Selborne mentioned were collusion and fraud. He had also assumed that "the old practice ... applicable to bills of review" was not in use. It seems that he only referred to the former practice as a useful analogy when considering the summary dismissal of an action to set aside a final judgment for fraud. Daniell at 1428 had stated unequivocally that the leave of the court was not required for the filing of a bill to impeach a decree for fraud, and I have difficulty in accepting that Lord Selborne could have been mistaken about this, or could have thought that a bill of review was the appropriate remedy in the Court of Chancery when a final judgment was to be impeached for fraud.

45 Since he assumed that bills of review were no longer in use, and mentioned only collusion and fraud as grounds for setting aside a final judgment, I do not read his speech as endorsing the discovery of fresh evidence without fraud as another ground for doing this.

46 In In re Scott & Alvarez's Contract [1895] 1 Ch 596, the Court of Appeal held that the vendor had shown a good title in accordance with the contract. The purchaser then obtained further evidence, which showed that the vendor had no title at all, and refused to complete. The vendor sued for specific performance and the purchaser obtained leave from Kekewich J to counter-claim for review on the ground of fresh evidence (610). The trial came before the same Judge who held that the purchaser could only resist specific performance if the order of the Court of Appeal could be reviewed. He continued (623):

"I apprehend that the order of the Court of Appeal may still be reviewed, notwithstanding that the Court of Chancery no longer exists, and that the jurisdiction is exercised in the Chancery Division ... [Counsel for the vendor] admitted that having regard to the case of Falcke v Scottish Imperial Insurance Company ... he could not here argue to the contrary. If the question is to be reopened, it must be before a higher tribunal ... I do not regard the case of Boswell v Coaks as at all condemnatory of actions of review ...".

47 In re St Nazaire Co was not cited, and the question of the jurisdiction or power of the High Court to entertain the cross-claim was conceded. Kekewich J dismissed the vendor's action for specific performance and declared that the order of the Court of Appeal was not binding on the purchaser (627). The vendor appealed but did not challenge the jurisdiction or power of the High Court to review the decision of the Court of Appeal. The decision of Kekewich J on the counter-claim was reversed without any comment from the Court on the question of jurisdiction, but it refused specific performance as a matter of discretion. In my opinion the judgment of Kekewich J on the counter-claim was contrary to In re St Nazaire Co and clearly wrong.

48 The bill of review procedure was again considered in Charles Bright & Co v Sellar [1904] 1 KB 6, where an action of review was brought for error of law apparent on the face of an order of the High Court. The trial Judge held that the action did not lie, and the plaintiff appealed. The order under challenge had not been enrolled (11) and Cozens-Hardy LJ, delivering the judgment of the Court, said that because of this the only remedy under the old procedure would have been a petition for rehearing. He continued:

"Now it has been held that since the Judicature Act no Judge of the High Court has jurisdiction to rehear, such jurisdiction being essentially appellate: In re St Nazaire Co".

49 However under the old procedure the case could have been reheard until the decree had been enrolled and this was still the position because this jurisdiction or power to review or rehear is not appellate. The jurisdiction or power only becomes appellate when the orders have been entered and can no longer be altered by the court which pronounced them. In In re St Nazaire Co the orders had been entered and the statement of Sir George Jessel MR, that the jurisdiction to rehear is appellate, referred to that situation.

50 It is evident that Cozens-Hardy LJ did not recognise the true effect of In re St Nazaire Co and he erred in concluding that the High Court could not review the order which had not been entered although this would be done by motion in the original proceedings.

51 Cozens-Hardy LJ continued at 12-13:

"It seems to follow logically from what has been said that the High Court has now no jurisdiction to review its own order on the ground of apparent error, by means of an independent action, and that the party complaining must come to the Court of Appeal ... doubtless there is ample jurisdiction now to deal by fresh action with some matters which were formerly the subject of a bill of review, or of a supplemental bill in the nature of a bill of review. For instance, where a judgment has been obtained by fraud, Birch v Birch [1902] P 130, or where fresh material evidence has been obtained since the judgment which could not have been previously procured, Boswell v Coaks 6 R 167, an action may be maintained. Actions of this nature do not invite the High Court to rehear upon the old materials. Fresh facts are brought forward, and the litigation may be well regarded as new and not appellate in its nature, because not involving any decision contrary to the previous decision of the High Court. Reliance was naturally placed upon the observations of Kay J in Falcke v Scottish Imperial Insurance Co to the effect that the old jurisdiction of the Court of Chancery to allow a bill of review is not affected by the Judicature Acts ... His decision that such an action may be maintained was quite correct ... If, however, the dictum is taken as an assertion that all the old jurisdiction of the Court of Chancery with respect to bills of review, including the jurisdiction to discharge an order on the ground of error apparent on the face of the order, is now vested in the High Court, we think it cannot be supported".

52 It is not easy to see why the procedure by bill of review based on the discovery of fresh evidence remained available in the High Court while the procedure by bill of review for error of law on the face of the order had been transferred to the Court of Appeal. There are also other difficulties. As has been seen (par 18), the old remedy when a decree had been obtained by fraud was not a bill of review, and (pars 43-4) Boswell v Coaks did not decide that the bill of review procedure based on the discovery of fresh evidence was still available in the High Court. In my judgment the dicta of Cozens-Hardy LJ about the jurisdiction or power of the High Court to entertain an action for review based on fresh evidence are wrong and I decline to follow them.

53 The existence of any jurisdiction or power in the High Court to entertain an action for review, on the ground of fresh evidence, to set aside a final judgment after it has been entered was repudiated by the Court of Appeal in In re Barrell Enterprises [1973] 1 WLR 19, 25-7, which until Taylor v Lawrence [2002] EWCA Civ 90; [2002] 2 All ER 353 CA had been treated as settling the question.

54 The article by D M Gordon QC "Fraud or New Evidence as grounds for actions to set aside Judgments" (1961) 77 LQR 358, 533 suggests that the bill of review procedure based on the discovery of fresh evidence survived the Judicature Act 1873 and still exists. However the author did not refer to In re St Nazaire Co (1879) 12 Ch D 88, and was mistaken in thinking that the bill of review procedure could be used to impeach a judgment for fraud.

55 The position in England does not determine the position in this State with its own history of the separate administration of law and equity until the Supreme Court Act 1970. The legislation in this State does not contain provisions which correspond to those in the Judicature Act 1873, which transferred the original jurisdiction of the Lord Chancellor to the High Court, and his appellate jurisdiction to the Court of Appeal.

56 The statute 4 Geo IV c 96 authorised the Crown by a Charter or Letters Patent under the Great Seal to establish the Supreme Court of New South Wales, and s 9 provided that the new Court should be a Court of Equity with the power and authority that the Lord Chancellor had within England for the due execution of such equitable jurisdiction. 9 Geo IV c 83 s 11 contained a similar provision which was made permanent by 4 and 5 Vic c 76 s 53.

57 The Court's jurisdiction in equity was originally exercised by the Full Court, but Acts 4 Vic No. 22, 5 Vic No. 9 and 11 Vic No 22 provided that it was to be exercised by a Judge with an appeal to the Full Court. Act 16 Vic No 3 s 31 recognised the bill of review procedure by providing:

"All decrees and orders made under the provisions of this Act shall be subject to rehearing, appeal and review and may be discharged or varied in the same and like manner as decrees and orders of the said Court made in suits instituted by bill".

58 The jurisdiction was confirmed by Hosking v Terry [1862] EngR 903; (1862) 15 Moore PC 493 [15 ER 581].

59 There was no relevant change until the Equity Act 1880 (44 Vic No. 18). Section 70, which provided that any person aggrieved by any decree or order of the Primary Judge in Equity might appeal to the Full Court within 14 days or within such further time as the Judge might allow, reproduced 4 Vic No. 22 s 21, but sections 71, 73 and 77 were new.

60 Section 71 provided that the appeal should be by way of rehearing, and s 73 provided that the Full Court could receive further evidence on the appeal, but only by special leave and on special grounds after a trial or hearing on the merits. Section 77 enabled the judge on his own motion or on the application of a party to direct a rehearing before the Full Court of any cause or matter "before him", which I take to mean before his decree or order had been entered.

61 Thus the 1880 Act provided for an appeal to the Full Court as the only remedy for challenging the decisions of a judge exercising the equitable jurisdiction of the Court. Under the previous law an aggrieved litigant wishing to obtain the variation or reversal of a decree on the ground of the discovery of fresh evidence had to obtain the leave of a judge to file a bill (later a statement of claim) to review the decree. Leave to rely on fresh evidence could now be granted by the Full Court on the hearing of the appeal, and the rehearing which had previously taken place at first instance on a bill of review (para 37) was now to take place on appeal. The relevant provisions of the 1880 Act were re-enacted in the Equity Act 1901, and in the Supreme Court Act 1970.

62 These provisions were consistent with In re St Nazaire Co (1879) 12 Ch D 88, which decided that a rehearing and a review on a bill of review were exercises of appellate jurisdiction, and Flower v Lloyd (1877) 6 Ch D 297, which decided that the receipt of further evidence on appeal was incidental to the exercise of appellate jurisdiction.

63 Until 1880 an aggrieved litigant in New South Wales probably had 20 years within which to commence proceedings for review. (This had been the position in England prior to 1873. See Mitford at 105-6.) The decisions in Hosking v Terry, challenged in the review proceedings, culminated in that of the Privy Council on 28 July 1856. The application for leave to file the bill of review was lodged on 12 August 1859 (503 [584]).

64 The remedy of appeal provided by the 1880 Act and its successors thus subsumed the earlier procedures for an appeal or rehearing before the Full Court, or a review at first instance for fresh evidence or error apparent. The old procedures were not abolished in terms but the powers to rehear and receive fresh evidence for the purpose of a rehearing were conferred on the Full Court and then the Court of Appeal as part of their appellate jurisdiction and short time limits were imposed for the institution of an appeal with a power to extend the time. In In re St Nazaire Co (1879) 12 Ch D 88 the limited time for an appeal under the Judicature Act was held to be inconsistent with any power in the High Court to rehear or review its orders after they had been entered.

65 In R v Wallis [1949] HCA 30; (1949) 78 CLR 529, 550 Dixon J said:

"This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation, or direction. In North Stafford Steel, Iron and Coal Co (Burslem) Ltd v Ward (1868) LR 3 Ex 172, 177 Willes J refers to `the ordinary rule, that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the act authorised under other circumstances than those defined'."

See also Thomson Australian Holdings Pty Limited v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150, 161 per Gibbs CJ, Stephen, Mason and Wilson JJ.

66 The jurisdiction of a Court of Equity to entertain an action to set aside a judgment for fraud was not affected by the legislative changes here or in England because such proceedings are based on a cause of action under the general law. The discovery of fresh evidence confers no such cause of action, but before the Judicature Act was recognised by the Court of Chancery and the Superior Courts of Common Law as a ground for a rehearing or a new trial. It is still a ground for such relief in the Court of Appeal in England and here, but there is now no provision for that relief to be obtained in any other way once the orders of the Court have been entered. In my judgment therefore the trial Divisions of this Court do not have any power or jurisdiction to entertain an action to review a final judgment on the ground of the discovery of fresh evidence.

67 This conclusion requires the dismissal of these proceedings without more, but the plaintiffs may seek to take the matter to the High Court. It is therefore appropriate for this Court to make findings on the material said to constitute fresh evidence so that the High Court, if necessary, can deal with all issues.

68 It is not necessary to restate at length the history of the original proceedings and of the appeal to this Court. These matters are fully set out in the judgments of Einstein J (341 pages) delivered on 9 July 1998 and this Court (79 pages) delivered on 20 February 2001 [[2001] NSWCA 13]. Einstein J held that Mr Harrison, a solicitor, and his friend and business associate, Mr Don Cameron, an estate agent, and their companies, should pay equitable compensation for breaches of fiduciary duty, undue influence and unconscionable conduct in their dealings with Mrs Schipp. The proceedings arose out of a joint venture for the development of a property at Mary Street, Thirroul and a further joint venture for the development of a property at 55-57 Kembla Street, Wollongong. Einstein J held that Mrs Schipp was a person with a special weakness, readily apparent to Messrs Harrison and Cameron, which sprang from her quiet, reserved and timid character, from her lack of commercial experience and, as a divorced woman, from her lack of close family support (judgment 207-8). Mrs Schipp had been cross-examined for 9 days. The sale of the Mary Street property was completed on 6 December 1988. Mr Harrison and Mr Cameron were promoting a joint venture for the development of the Kembla Street property then owned by Emibarb Pty Limited, a company controlled by Mr Harrison. Mr Harrison was in financial difficulties arising from a multi-currency floating interest rate loan of $1.2 million which Emibarb obtained from the Commonwealth Bank in April 1985. The loan had to be rolled over every 6 months and the next rollover date was 31 January 1989 (judgment 54-5). On that date Emibarb had to pay the Bank the rollover costs which were approximately $175,000 (judgment 97). On 29 November 1988 Mr Harrison had been warned by the Bank that if Emibarb failed to meet its obligations on the rollover date the Bank would seriously consider appointing receivers and managers (judgment 96).

69 Discussions with a view to forming a joint venture for the purchase and development of the Kembla Street property began in December 1988 immediately after the settlement of the sale of the Mary Street property. Meetings, which included Mr Harrison, Mr Cameron and others, were said to have occurred on 8, 10, 20 and 28 December. The Judge found on the basis of Mrs Schipp's evidence that she had not attended any of these meetings prior to 28 December. A number of witnesses, including Mr Harrison and Mr Cameron, had given evidence that Mrs Schipp had been present at these meetings, and that a Mr Murphy, an officer of AGC, had also attended the meeting on 8 December while Mrs Schipp was present.

70 According to the evidence of Mr Harrison, Mr Cameron and others, Mrs Schipp, having earned a quick profit from the sale of Mary Street, was an enthusiastic participant in these discussions. Mrs Schipp however gave evidence that she was becoming increasingly worried about the money due to her from the sale of Mary Street because she had not been repaid either her original investment, or her share of the profit, which Mr Harrison and Mr Cameron claimed (wrongly as has been held), had to be shared equally with them, and she had not received any form of accounting. When she was finally able to speak to Mr Harrison he told her that the money was safe on deposit with the Commonwealth Bank. On 18 December Mrs Schipp, who was then on holidays in Queensland, phoned Mr Baird, a solicitor in Wollongong who had acted for her on her divorce, and asked him to take steps to recover her money. On her return she conferred with him on 21 December, and on 22 December he wrote to the Commonwealth Bank "freezing" the account, and to Mr Cameron demanding an accounting on behalf of Mrs Schipp. On 23 December Mrs Schipp wrote a letter to Mr Baird detailing her concerns.

71 According to Mr Harrison and Mr Cameron, they spent some time together on 27 December preparing a full reply to Mr Baird's letter. Mr Cameron claimed that he delivered this reply to Mr Baird's office on 28 December by pushing it under the door at about 8.30 that morning. Mr Baird's office had closed for the Christmas/New Year break, but according to Mr Cameron he had been told by Mr Baird over the telephone that he, Mr Baird, would be in his office on 28 December.

72 It was common ground that later that morning Mrs Schipp attended a meeting of the would be joint venturers. According to her, she was abused by Mr Cameron for her lack of trust in Mr Harrison and himself and in going behind their backs to consult Mr Baird. Einstein J described the occasion as the "roaring meeting". The evidence of Mr Harrison and Mr Cameron painted a very different picture, but another witness, a Mr Zander, who became a member of the joint venture, partly corroborated Mrs Schipp's evidence because he said that there was "a fair bit of tension" after she arrived and said that while Mr Harrison and Mr Cameron were talking to her he moved away and began reading a magazine (Court of Appeal judgment p 38). Mr Cameron claimed that he had given Mrs Schipp a copy of the letter delivered that morning to Mr Baird but Mrs Schipp denied this. The Judge accepted her evidence about this meeting.

73 Mr Baird said that he did not receive a copy of the letter of 28 December at that time and Mrs Schipp said that she first saw the letter in June 1989 when she was casually given a copy by Mr Cameron. Einstein J accepted Mr Baird's evidence and found that the letter was not delivered on 28 December. There was material in the letter, on which Mr Harrison was cross-examined, which supported that finding.

74 The evidence which is relied on as "fresh evidence" is as follows:

(1) the evidence of Mr Comelli (affidavit of 21/8/01);

(2) the evidence of Mr Murphy (affidavit of 22/8/01);

(3) evidence relating to diary entries of Mr Baird.

75 Mr Slattery QC, counsel for Mrs Schipp, objected to this material on the ground that none of it was fresh evidence, but no other evidentiary objection was taken, and the deponents were not required for cross-examination.

76 Mr Comelli gave evidence of business dealings with Mrs Schipp and her then husband, Mr Harry Schipp, between 1971 and about 1983. These related to the sale in August 1973 of a milk bar/toy shop business owned by Mr and Mrs Schipp at 11 Bong Bong Road Dapto, the attempted sale in 1975 of their newsagency business in Dapto, the management of two residential rental properties in Dapto when Mr Comelli's firm collected the rents on behalf of Mr and Mrs Schipp, and their block of shops in Kiama and block of flats in Dapto. From time to time in the late 1970's he acted as the selling agent for tenants in the latter properties. He said that he generally saw Mr and Mrs Schipp together, that Mr Schipp did most of the talking, but was not as tough as Mrs Schipp. He concluded:

"Over the period of my business dealings with Mr and Mrs Schipp from about 1971 to 1983 I observed that Mrs Schipp was always well dressed and well groomed. She had a matter of fact style, she knew what she wanted and she could not be influenced or pushed around. She was not timid. She was street wise, a capable business women, a firm negotiator, a person who stood her ground, a person who paid attention to detail and who checked the accuracy of documents. I saw Mr and Mrs Schipp accumulate substantial wealth. From what I saw of their relationship Mrs Schipp was the driving force behind their financial success".

77 Mr Schipp was for many years an alderman on the Wollongong Council and Mr Comelli said that Mr Schipp "built" the block of flats in Dapto in the late 1970s, meaning, I presume, that he was the developer.

78 Mr Comelli's evidence needs to be weighed against the background of undisputed facts about Mr and Mrs Schipp. They had four children born in 1959, 1961, 1972 and 1973. Mrs Schipp had a nervous breakdown in 1968, but recovered and had further children. She and her husband separated in 1984 (judgment p 52) and were divorced a year later. Their property settlement was not finalised until 1987.

79 Mrs Schipp was extensively cross-examined at the trial about the property and business interests of her husband and herself during the period referred to by Mr Comelli. His affidavit does not refer to any property interests which were not known to the plaintiffs and their advisers during the trial.

80 Mr Comelli's evidence relates to the conduct of Mrs Schipp while she was living with her husband. He had no business dealings with Mrs Schipp on her own, and in the dealings in which he was involved Mr and Mrs Schipp were in control as potential vendors under no compulsion to sell, or as landlords. All the dealings were at arm's length.

81 After the period referred to by Mr Comelli, Mrs Schipp went through the trauma of separation, divorce, and contentious property settlement proceedings. When she was dealing with Mr Harrison and Mr Cameron she was on her own without effective family support. She was not dealing with them at arm's length but as her advisers or fiduciaries. More importantly she was dealing with Mr Harrison, her solicitor, who was advising her in relation to transactions in which he and Mr Cameron were dealing with her to their own advantage, and on the findings to date, robbing her in the process.

82 This evidence does not satisfy the requirement for fresh evidence that it be "of such probative value and significance that, taken with the evidence already given at the trial, it would in all probability be decisive of the issues between the parties in a sense opposite to that of the verdict" (McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529, 532 per Barwick CJ).

83 The evidence related to an earlier period, to business transactions of a different kind, conducted in different circumstances. The earliest events occurred 30 years and the latest 18 years before Mr Comelli swore his affidavit. The evidence is peripheral to the events between 1987 and 1989 on which the case turned and taken at face value could not possibly be decisive on any critical issue. At best it may have provided slight support for some of the evidence given by Mr Harrison and others about Mrs Schipp's business capacity. This evidence is not fresh and therefore must be rejected.

84 Mr Murphy was a witness for Mr Harrison at the trial. He swore his first affidavit on 11 February 1993 and gave a statement to Mr Harrison's solicitors on 28 February 1993. He said in that affidavit that in December 1988 he was asked by Mr Cameron to meet the syndicate members in January 1989. He did not refer to a meeting on 8 December at Mr Cameron's office at which he met the syndicate members including Mrs Schipp. He swore his second affidavit on 2 February 1996 and again made no reference to meeting Mrs Schipp in Mr Cameron's office on 8 December 1988, although in the interval Mrs Schipp had sworn an affidavit in which she denied being present at such a meeting. He gave oral evidence at the trial and said that he had first met Mrs Schipp early in January 1989 (judgment p 105). The Judge accepted Mrs Schipp's evidence that she had not been present at a meeting on 8 December supported as it then was by Mr Murphy's evidence.

85 In his affidavit in the current proceedings, Mr Murphy said that when he swore his first affidavit and wrote out his handwritten statement it had not occurred to him to include details of a meeting on 8 December 1988 at which Mrs Schipp had been present. He was asked about that meeting prior to swearing his second affidavit, but had then forgotten about it. Although he had since reread his letter of 11 November 1994 to Mr Parasyn, the former solicitor for Mr Harrison in these proceedings, and then still the solicitor for Mr Cameron, he had no recollection of the meeting of 8 December 1988, although it was referred to in that letter.

86 Mr Harrison said in his affidavit sworn on 12 December 2001 (para 74), that he telephoned Mr Murphy in August 1994 after reading Mrs Schipp's affidavit of 24 August 1994 in which she denied attending a meeting on 8 December 1988 with the syndicate members and Mr Murphy. Mr Harrison asked him if he recalled being at that meeting. Mr Murphy said he did not recall the meeting but asked Mr Harrison to send him Mrs Schipp's affidavit and he would respond to it. Mr Harrison did this but heard nothing further from Mr Murphy.

87 After the Court of Appeal had given its judgment in the appeal, Mr Harrison discovered that Mr Murphy had written a letter to Mr Parasyn on 10 November 1994 in which he said that he had attended the meeting on 8 December 1988 and met Mrs Schipp.

88 When Mr Parasyn ceased to act for Mr Cameron in 1995, he gave Mr Cameron a box containing his files relating to the case. Mr Cameron stored this box under the house of his ex-wife in Figtree. Following a telephone conversation in August 2001, Mr Cameron and Mr Harrison obtained the box and when they inspected the files discovered Mr Murphy's handwritten letter of 10 November 1994 to Mr Parasyn.

89 Mr Murphy's statement in his affidavit in the present proceedings that he did not mention the meeting of 8 December in his first affidavit and statement is not persuasive in view of what he did say in that affidavit (Blue appeal book vol 5 p 832). It is also, to say the least, remarkable that by February 1996 Mr Murphy had forgotten not only the meeting of 8 December 1988 but his conversation with Mr Harrison in August 1994, his receipt and consideration of Mrs Schipp's affidavit, and the letter he had written to Mr Parasyn only 15 months earlier.

90 The plaintiffs face a number of difficulties in having the evidence of Mr Murphy accepted as "fresh". He was a witness at the trial where he gave evidence to the opposite effect. Further evidence from a witness called by the unsuccessful party at the trial, where corruption or duress implicating the successful party is not alleged, cannot ordinarily be fresh evidence, and we were not referred to any decision that it could be. Even in criminal cases where the rules as to fresh evidence are less restrictive, evidence by a witness on appeal that his evidence at the trial was perjured or mistaken is not in itself a ground for a new trial. See Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170, 183 and R v Flower [1966] 1 QB 147, 150-1. In the former Latham CJ, Rich, Dixon, Evatt and McTiernan JJ said at 183:

"A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined".

91 The same principle must apply where the witness claims that his evidence at the trial although honestly given was incorrect.

92 Where corruption or duress implicating the successful party can be proved, the case would be one of fraud where the strict requirements for the admission of fresh evidence do not apply. See Toubia v Schwenke (2002) 54 NSWLR 46.

93 However, the letter of 10 November 1994 would itself be admissible, and is in a different category but the plaintiffs still have to establish that the exercise of due diligence would not have led to its discovery before the trial.

94 Mr Harrison telephoned Mr Murphy in August 1994 and as requested sent him a copy of Mrs Schipp's affidavit of 24 August. For some unexplained reason Mr Murphy wrote to Mr Parasyn without communicating directly with Mr Harrison. This called for some explanation because Mr Parasyn had ceased to act for Mr Harrison on 5 October 1993 (Dark Blue 2/104). However what is significant is that Mr Harrison did not follow up his phone call and letter with a further phone call or letter. Had he maintained contact with Mr Murphy, he would either have received the letter of 10 November 1994 or learned of its existence in time to use the information at the trial.

95 The failure of Mr Harrison to follow up his telephone conversation and letter to Mr Murphy involved a lack of due diligence on his part. Mr Murphy's letter and his latest affidavit are not fresh evidence and must be rejected.

96 Assuming in the plaintiffs' favour that Mr Murphy's new evidence was fresh evidence and was accepted, and that the Court should therefore find that Mrs Schipp did attend the meeting of 8 December, what follows? Mrs Schipp's presence or absence from this meeting was a peripheral issue at the trial. If Mr Murphy's letter reflects the truth and Mrs Schipp was present, she may have honestly forgotten this fact, or she may have dishonestly denied it in an attempt to improve her case.

97 In the former situation the evidence would be relevant both to prove that she was present, and to show that, in this respect, her recollection was poor and her evidence unreliable. However evidence relevant only for the latter purposes lacks the decisive quality required if an otherwise unimpeachable judgment is to be set aside and a new trial ordered. See McDonald v McDonald above at 543 per Menzies J and Braddock v Tillotson's Newspapers Ltd [1950] 1 KB 47 CA, 50.

98 On the other hand if Mrs Schipp's denial of being present at that meeting was perjured, that alone is not sufficient to obtain a new trial either. See McDonald v McDonald above at 544 per Windeyer J. It is still necessary to consider the significance of the evidence because from time to time a party with a good case is unable to resist the temptation to improve it.

99 Even if Mrs Schipp was present at the meeting on 8 December and appeared to be a willing participant in the discussions, this cannot displace the Judge's findings as to the events later in December and January on which he based his conclusion that Mrs Schipp's participation in the syndicate was procured by the exercise of undue influence, breaches of fiduciary duty and unconscionable conduct amounting to equitable fraud on the part of Mr Harrison and Mr Cameron.

100 These conclusions are solidly underpinned by undisputed evidence, or by findings which cannot be challenged and are not undermined by proof that she was present at the meeting on 8 December. She denied being present at a meeting on 10 December and Einstein J found that she had not been present. A finding that she was present at the meeting on 8 December may have led to a finding that she was also present at the next meeting. It was common ground that she was not present at a further meeting on 20 December, but that she was present at a meeting on 28 December. It was beyond dispute that she consulted Mr Baird on 18 and 21 December, that he wrote the two letters of 22 December, and that Mrs Schipp wrote to him on 23 December (par 70).

101 The Judge's findings as to the "roaring meeting" on 28 December would not be affected, supported as they were by the independent evidence of Mr Zander (par 71). Indeed the behaviour of Mr Cameron and Mr Harrison at that meeting may be all the more explicable if Mrs Schipp had resiled from her earlier willingness to join the syndicate evidenced by her presence and conduct at the meetings of 8 and 10 December.

102 Mrs Schipp had not given evidence that her presence at the meetings on 8 and 10 December and her apparent willingness to join the syndicate at that stage were the result of any acts of equitable misconduct on the part of Mr Harrison and Mr Cameron, or that she had any relevant contact with them between the settlement of the Mary Street sale on 6 December and those meetings. She of course denied that she had been present at those meetings and the absence of any such evidence was consistent with that denial.

103 Her case was based on the failure of Mr Harrison and Mr Cameron to account to her after 6 December, and the events at and following the "roaring meeting" on 28 December. Accordingly a finding based on Mr Murphy's new evidence and his letter of 10 November 1994 that Mrs Schipp did attend the meetings on 8 and 10 December and then appeared to be willing, or even eager, to join the syndicate could not, in my judgment, disturb the Judge's findings as to the "roaring meeting" and the later events in January. The new evidence therefore lacks the necessary decisive quality, and on that ground also it must be rejected.

104 The other new evidence relied on includes the report of Dr Stephen Strach of 3 December 2001 (Blue 1/78 & foll). This dealt with four file notes of Mr Baird of 21 December 1988 (Blue 1/82-5). They were written on lined paper which may or may not have come from a single pad.

105 There were no extraneous impressions on the file notes at pp 83 and 85, but there were impressions on the file note at p 84 from the file note on p 82 indicating that the file note on p 82 was written, in part, while it was on top of the sheet of paper on which the file note on p 84 was written.

106 The file notes were in evidence at the trial but were not then controversial and they did not prove or tend to prove any fact which was then in dispute. A submission was made on behalf of the plaintiffs that the presence of some extraneous impressions on one file note, coupled with the absence of extraneous impressions on the others, constituted "irregularities" which made all the notes unreliable and that this was a reason for treating Mr Baird as an unreliable witness.

107 This was a desperate submission. We do not know how many note pads Mr Baird used during his conference with Mrs Schipp on 21 December or whether, as a matter of habit or otherwise, he removed the pages before he wrote on them but wrote on that at p 82 while it was loose immediately above that on p 84.

108 This evidence not only lacks the necessary decisive quality, it was barely if at all material. The report of Dr Strach should therefore be rejected.

109 The existence of Dr Strach's report encouraged the legal advisers of the plaintiffs to revisit file notes of Mr Baird dated 27 and 31 May 1990 which were in evidence at the trial.

110 The file note of 27 May (Blue 5/698), which is not otherwise remarkable or of any materiality, contains an internal inconsistency because of the words "auction 4/7/91". On this basis the submission has been made on behalf of the plaintiffs that the note was not written contemporaneously with its apparent date and was fabricated. However this internal inconsistency did not escape the notice of Mr Archer, counsel for Mr Harrison at the trial.

111 Mr Archer cross-examined Mr Baird on this note (Black 3/734-5) and put to him that the file note had been misdated and should have been dated 27 May 1991. Mr Baird eventually agreed. Counsel did not suggest to Mr Baird that the file note had been fabricated.

112 The other file note of Mr Baird, which is now relied on, is that dated 31 May 1990 (Blue 5/699-701). This purports to record a telephone conversation between Mr Baird and Mr Robert Burke, an accountant who acted for Mrs Schipp between January 1989 and June 1993, and also for Pyogrove Pty Ltd, the joint venture company which had purchased the Kembla Street property. The note contains the following:

"Auction last Sat - didn't sell. Syndicate to buy her out - Don and George take ½ of her share - offered her $30,000.00 all guarantees released - she wants $100,000.00 and they said no!"

113 It was said that the statement that the property did not sell at auction last Saturday could only have referred to an unsuccessful auction which is known to have taken place on Saturday 26 May 1990. The only other unsuccessful auction was on Thursday 4 July 1991. The file note also refers to negotiations with Messrs Cameron and Harrison which, on the basis of other evidence in the present proceedings, were said to have occurred in 1991 and not 1990.

114 It was then said that Mr Baird obtained the information in this file note from a letter Mr Burke had written on 9 July 1991 to Mr Phillip Lewis, another solicitor, who was then acting for Mrs Schipp (Blue 1/54-5). It appears to have been sent by fax under cover of Mr Burke's handwritten letter of the same date (1/53), but it has not been established that Mr Baird ever saw the letter sent to Mr Lewis. It was in evidence at the trial.

115 Mr Burke said in his affidavit in these proceedings that the negotiations referred to in this letter between Mrs Schipp on the one hand, and Messrs Harrison and Cameron on the other, took place in 1991 not 1990 as stated in the letter, and that the 1990 dates in the letter are incorrect.

116 The timing of these negotiations was well known to Mr Harrison and Mr Cameron because they were directly involved and their new evidence to this effect cannot be fresh. Indeed Mr Baird was cross-examined at the trial on the basis that his file note of 31 May 1990 was correctly dated (Black 5/735-6).

117 Mr Baird was also cross-examined to suggest that he had phoned Mr Bourke on 31 May 1990 at the request of Mrs Schipp (735) and that he saw her on 4 June 1990 in connection with matters referred to in his diary note of that date (5/729-31, 733-4, 735, 736-8). His affidavit in the original proceedings referred to a further telephone conversation with Mr Bourke on 7 June 1990 (738-9) and he was cross-examined about a telephone conversation with Mr Harrison on 8 June that year (739-40). This cross-examination suggests that negotiations did take place in May and June 1990 for Mrs Schipp to be bought out of the syndicate.

118 It is strange to say the least that Mr Bourke included so many incorrect references to 1990 in his letter to Mr Lewis of 7 July 1991 if the events referred to had occurred within the last month or two. He said in his affidavit in these proceedings (Blue 1/52) that he "prepared the letter by referring to documents in my file at that time and also from my recollection of events as it was at that time".

119 Einstein J found that the evidence of Mr Bourke given at the trial was unreliable and should not be accepted (judgment pp 143, 151, 158). Prima facie therefore his new evidence lacks the quality of credibility which is an essential requirement of fresh evidence. However, assuming in favour of the plaintiffs that Mr Bourke's new evidence is credible, and that the negotiations referred to took place in 1991 and not in 1990, the fact remains that he had sworn an affidavit in the trial and had been called as a witness. His new evidence is therefore not fresh, because it was capable of being discovered by the exercise of due diligence before the trial.

120 The new evidence lacks the necessary decisive quality. The true date of this file note of Mr Baird and its contents are not material facts and do not impact on material facts which were in dispute at the trial. Assuming in favour of Mr Harrison that Mr Baird did fabricate and back-date this diary note (it should be noted that the Court could not possibly make such a finding in the present proceedings because Mr Baird is neither a party nor a witness and has not had any opportunity to defend himself or explain the error in the date of the file note, if error there was), this would not directly affect any material finding made by Einstein J about the conduct of Mrs Schipp, Mr Harrison or Mr Cameron. Such a finding could materially affect Mr Baird's credit, but Mr Baird's evidence was only important in relation to the finding that he did not receive Mr Cameron's letter of 28 December 1988 on that day.

121 New evidence which is only relevant to the credit of a witness, even an important witness, generally lacks the decisive quality required for fresh evidence. As Menzies J said in McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529, 543:

"It could only be in a rare case that a judgment would be set aside because of fresh evidence relating to a collateral matter merely affecting the credibility of a witness".

See also Braddock v Tillotson's Newspapers Ltd [1950] 1 KB 47 CA, 50.

122 This evidence cannot possibly be decisive because it might appear after a further investigation of the facts that the file note was correct. For example the negotiations in 1991 may have involved a re-run of negotiations in 1990. The resolution of that issue could raise further credibility questions as between Messrs Harrison, Cameron and Bourke on the one hand, and Mr Baird and Mrs Schipp on the other.

123 Accordingly, for all these reasons, the new evidence of Mr Bourke, Mr Harrison and Mr Cameron relating to the negotiations in 1991 is not fresh and must be rejected. None of the new evidence relied upon meets the exacting conditions required by law for the admission of fresh evidence.

124 SCR Pt 12 r 2(1) requires the whole proceedings to be removed to the Court of Appeal, and r 2(2)(b) enables this Court, in a proper case, to make orders finally disposing of the proceedings. In the light of my conclusions that this Court lacks the power to entertain these proceedings and that, in any event, the new evidence relied upon by the plaintiffs does not satisfy the stringent requirements for fresh evidence, orders should be made dismissing the proceedings with costs and directing that the orders be entered forthwith.

125 As a postscript, I will add this. By the second half of 1988 Mr Harrison was in serious financial difficulties. The loan of $1.2 million which his company Emibarb Pty Limited had obtained from the Commonwealth Bank secured by the Kembla Street property and his personal guarantee had become a major problem. The Kembla Street property was undeveloped and could neither be sold at an acceptable price, nor developed, because Emibarb Pty Limited and Mr Harrison were unable to borrow further funds for this purpose. The next rollover of the loan was due on 31 January 1989 and Mr Harrison had to find approximately $175,000 to secure a rollover. The Court may be permitted to know that interest rates at the time were very high and the bull property market was beginning to look fragile. If Mr Harrison failed to raise the necessary funds in time, the Bank was likely to enforce its securities, and he could be facing financial ruin.

126 Mr Harrison had no chance of raising the required funds from the profits of his solicitor's practice, his restaurant, or from his other normal sources of income. Drastic action was needed and Mrs Schipp with the funds obtained from her divorce settlement provided what might fairly be described as a golden opportunity of solving his financial problems. However, if this was to occur he had to act as her solicitor, and at the same time enter into business transactions with her which would be profitable for himself.

127 As long ago as 1862, Lord Westbury LC said in the House of Lords in Tyrrell v Bank of London [1862] EngR 498; 10 HLC 26 [11 ER 934] at 39-44 [939-941]:

"... the decision which I shall advise your Lordships to pronounce in this case rests, in my opinion, on very clear principles and rules of conduct, of which it would be in the highest degree mischievous to impair the force or weaken the application ... The principle is that the solicitor shall not be permitted to make a gain for himself at the expense of his client. The client is entitled to the full benefit of the best exertions of the solicitor. The relation of solicitor and client involves, of course, the relation of principal and agent. The duties of the first relation include all those of the second and something more; and I prefer therefore to rest my opinion in this case on the obligations of a solicitor to his client ... there is no relation known to society, of the duties of which it is more incumbent upon a court of justice strictly to require a faithful and honourable observance, than the relation between solicitor and client; and I earnestly hope that this case will be one of the many which vindicate that rule of duty which has always been laid down, namely, that a solicitor shall not in any way whatever in respect of the subject of any transactions in the relations between him and his client make gain to himself at the expense of his client, beyond the amount of the just and fair professional remuneration to which he is entitled".

128 In 1975 in Law Society of New South Wales v Harvey [1976] 2 NSWLR 154 Street CJ, delivering the judgment of this Court, said at 171:

"A solicitor who deals with his client while remaining his solicitor, undertakes a heavy burden ... A conflict of interest which is avoidable, and ought to be avoided, is that which arises from a deliberate proposal of the solicitor that his client deal with him. If, for example, a client seeks aid or advice from a solicitor concerning lending or borrowing, or the acquisition or disposal or dealing with assets the solicitor will disregard his primary duty as a solicitor referred to so trenchantly by Lord Westbury if he uses the occasion to become the party who deals with his client. It can make no difference if he is not a party directly, but the transaction is with a company in which he has an interest. In the absence of very special circumstances a solicitor who promotes himself as the dealer with his client misuses his position ... the price of being a member of an honourable profession, whose duty to his client ought not to be prejudiced in any degree, is that a solicitor is denied the freedom to take the benefit of any opportunity to deal with persons whom he has accepted as clients. Therefore he ought neither to promote, suggest, nor encourage a client to deal with him, but rather should take all reasonable steps positively to avoid dealing directly or indirectly with his client".

129 These salutary principles exist to protect clients from their solicitors. As Lord Westbury said, a solicitor is a fiduciary agent of his client and as such is subject to the ordinary fiduciary duties of an agent. In Ex parte James [1803] EngR 536; (1803) 8 Ves 337 [32 ER 385] the solicitor acting for the trustees of a bankrupt estate had purchased land belonging to the estate at public auction. Lord Eldon LC set aside the transaction because of that relationship saying (345 [388]):

"This doctrine as to purchases by ... persons having a confidential character, stands much more upon general principle than upon the circumstances of any individual case. It rests upon this; that the purchase is not permitted in any case, however honest the circumstances, the general interests of justice requiring it to be destroyed in every instance; as no court is equal to the examination and ascertainment of the truth in much the greater number of cases".

130 The same principles apply to sales.

131 In Parker v McKenna (1874) LR 10 Ch App 96 at 118, Lord Cairns LC said that the inflexible rules of equity governing profits made by agents without the full knowledge and consent of their principal had been established because "the Court will not enquire, and is not in a position to ascertain" whether the principal has lost or not lost by reason of the acts of the fiduciary agent. In the same case James LJ said at 124-5:

" ... no agent in the course of his agency, in the matter of his agency, can be allowed to make any profit without the knowledge and consent of his principal ... That rule is an inflexible rule, and must be applied inexorably by this Court, which is not entitled in my judgment to receive evidence or suggestion or argument as to whether the principal did or did not suffer any injury in fact by reason of the dealing of the agent; for the safety of mankind requires that no agent shall be able to put his principal to the danger of such an enquiry as that".

132 As Lord Westbury said in Tyrrell v Bank of London, these principles apply to solicitors with special stringency. This is because of the relationship of trust and confidence which exists between solicitors and their clients, and the capacity this confers upon solicitors to influence their clients for their own financial profit.

133 Mr Harrison placed himself in an impossible position when he and a company of his entered into business arrangements with Mrs Schipp involving the Mary Street and Kembla Street properties. The conflicting evidence at the trial about the dealings between Messrs Harrison and Cameron, on the one hand, and Mrs Schipp on the other, and the attempt to revisit some of these conflicts in the present proceedings, demonstrate yet again the wisdom of the inflexible rules of equity to which I have referred. It is extremely difficult some years after the event for any Court to work out what really took place between a solicitor and his client in private or semi private discussions where, as in this and most of these cases, those discussions were not recorded in contemporary correspondence. The safety of mankind requires that solicitors do not deal with their clients for their own financial benefit. If they breach these rules they will either have to disgorge the profits they have made, as occurred in Tyrrell v Bank of London, or indemnify their clients against losses as occurred in the present case.

134 GILES JA: I have had the advantage of reading the judgments of Handley JA and Ipp AJA in draft. I draw upon their Honours' detailed expositions in stating why, in my opinion, the relief sought by the plaintiffs can not be granted. With additional remarks not affecting the outcome, I generally agree with the reasons of Handley JA in which his Honour explained why, even if it could be granted, it should not be granted.

Introduction

135 The relief is sought in proceedings brought for decision by a judge at first instance. The proceedings have been removed to the Court of Appeal pursuant to Pt 12 r 2 of the Supreme Court Rules, but there is no appeal and the Court of Appeal is still exercising the original jurisdiction of a first instance judge. The order removing the proceedings stated as the question to be decided "Whether a single Judge of the Equity Division has the power, or the jurisdiction, to grant the relief sought in the amended Statement of Claim", but the whole of the proceedings was removed. The statement of a question required by Pt 12 r 2(1)(b), serving to concentrate the mind on whether removal is warranted, does not confine the Court of Appeal to answering the stated question.

WHETHER RELIEF CAN BE GRANTED

136 The core relief sought is orders that orders 1 and 7 made by Einstein J on 9 September 1998 be set aside and that there be a new trial. Order 1 is the order that the plaintiffs and their co-defendants in the proceedings before Einstein J pay equitable compensation and interest to Mrs Schipp. Order 7 is the order giving judgment for Mrs Schipp on a cross-claim for contribution as co-guarantor to a financier for the Kembla Street joint venture. The other relief sought is directed to the orders made by the Court of Appeal on 20 February 2001 varying Einstein J's costs orders.

137 Orders 1 and 7 survived the appeal to the Court of Appeal, and so remain the operative orders. The orders of the Court of Appeal are the operative orders as to costs. If the core relief is not available, there will be no occasion to set aside the costs orders. Attention may therefore be concentrated on orders 1 and 7, without troubling about the complication of a judge at first instance setting aside orders of the Court of Appeal.

138 Entry of the order is under current procedures the formal act which records the result in proceedings and concludes their disposition by the court. The general principle, driven by the need for finality in litigation, is that when an order has been entered, the proceedings can not be re-opened to lead further evidence (including fresh evidence, that is, evidence not discoverable by due diligence before the trial in the proceedings) with a view to a different result (Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; Gamser v The Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145; CDJ v VAJ (No 1) (1998) 197 CLR 172; DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226). It follows that as a general principle separate proceedings can not be brought to set aside an order and have a new trial on the ground that further evidence may lead to a different result.

139 Separate proceedings can be brought to set aside an order which has been entered and have a new trial on the ground that the order was obtained by fraud (see for example Hip Foong Hong v H Neotia & Co (1918) AC 888; Jonesco v Beard (1930) AC 298; McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534). The plaintiffs did not allege fraud. They alleged only the discovery of fresh evidence.

140 The general principle depends, of course, on any statutes governing the particular court (see DJL v The Central Authority at 247). The plaintiffs did not dispute the general principle, or that it applied in the present case. They submitted that separate proceedings could be brought under the bill of review procedure in the Court of Chancery prior to the Judicature Act 1873, and that their proceedings could be brought as the manifestation in current form of that procedure as part of the power and authority of the Lord Chancellor vested in the Supreme Court of New South Wales when it was established in the early nineteenth century.

The bill of review procedure in England

141 The formal act in the Court of Chancery of which entry of an order is now the equivalent was enrolling a decree.

142 According to Mitford, A Treatise on the Pleadings in Suits in the Court of Chancery by English Bill, 5th ed (1847), pp 101-2, the object of a bill of review was to procure an examination and reversal of a decree made upon a former bill and signed and enrolled; it could be brought on error of law appearing in the body of the decree itself "or upon discovery of new matter", and if it was sought to reverse a decree signed and enrolled upon discovery of new matter -

" ...the leave of the court must be first obtained; and this will not be granted but upon allegation upon oath that the new matter could not be produced, or used by the party claiming the benefit of it at the time when the decree was made. If the court is satisfied that the new matter is relevant and material, and such as might probably have occasioned a different determination it will permit a bill of review to be filed."

143 In Daniell, The Practice of the High Court of Chancery, 5th ed (1871), pp 1422-3 it is said that a bill of review could be brought to have a decree which had been enrolled varied or reversed; it could be brought for error of law appearing on the face of the decree or "upon some new matter which has been discovered after the decree, and could not possibly have been used when the decree was made", and -

"If the bill is filed on the ground of new matter, discovered since the decree, the new matter must be relevant and material, and such as might probably have occasioned a different determination; and no bill of review ... grounded upon new matter discovered after the decree, can be brought without the special leave of the Court, first obtained for that purpose".

See also Smith, Practice of the Court of Chancery, 7th ed (1862), pp 809, 811.

144 A bill of review could not be brought if twenty years had elapsed from the time of pronouncing the decree, unless the plaintiff was under a disability (Mitford, pp 105-6; Daniell, pp 1424-5; Smith, p 811). From the cases cited, the period seems to have been arrived at by analogy with the time within which writs of error could be brought in the common law courts.

145 According to Daniell, p 1423, the application for leave to file the bill of review was usually made by petition, but could be made by motion. Daniell continues -

"Upon the application, the Court must be satisfied that the new matter has come to the knowledge of the applicant and his agents for the first time since the period at which he could have made use of it in the suit, and that it could not, by reasonable diligence, have been discovered sooner; and that it is of such a character that, if brought forward in the suit, it would probably have altered the judgment." (pp 1423-4)

146 This is consistent with the passage from Mitford earlier set out, and see also Smith pp 814-5. That new matter was available, that it was fresh evidence, and the probability of a different result arose on the application for leave. The earlier passage in Daniell, p 1422-3 should not be read as saying that on the bill of review itself the court went no further than finding that the new matter "might probably have occasioned a different determination": it should be read as directed to the application for leave to file the bill of review.

147 What happened, then, if leave was given and the bill of review was filed?

148 Daniell says, p 1425, in a passage reflecting Mitford pp 106-7 on which it is based -

"In a bill of this nature, it is necessary to state the former bill and the proceedings thereon, the decree, and the point in which the party exhibiting the bill of review conceives himself aggrieved by it, and the ground of law, or new matter discovered, upon which he seeks to impeach it. If the decree is impeached on the later ground, the bill must state the leave obtained to file it, and the fact of the discovery. The bill may pray, simply, that the decree may be reviewed and reversed in the point complained of, if it has not been carried into execution. If it has been carried into execution, the bill may also pray the further decree of the Court, to put the party complaining of the former decree into the situation in which he would have been, if that decree had not been executed."

To the same effect is Smith, p 812.

149 D M Gordon QC in "Fraud or New Evidence as Grounds for Actions to Set Aside Judgments" (1961) 77 LQR 358 (Pt I), 533 (Pt II) considers actions for review extending also to review for fraud and review of decisions of common law courts. He says (at 379) -

"Light on how an action of review should be conducted, after the way is open to proceed to a hearing comes mostly from the old Chancery cases. The course that proceedings should take seems to have been by no means constant; the various steps possible in the conduct of a review were very much in the discretion of the Chancellor, according to the controversies that the new evidence on review would raise. The Chancellor would dispose of all matters on one hearing or divide these between several hearings according to what was most convenient and expedient in the particular case. For that reason, not much can be discovered in the way of rules, and only a few elastic ideas can be discovered in the precedents."

150 The learned author says (at 380-1) that in a review because of new evidence the new evidence could hardly be considered apart from the original evidence, and that if the court reached the stage of rehearing the original case it would make a final disposition of the original action. In later considering in more detail what he called the main hearing, he says (at 557) that in a review on discovery of new evidence the course of the proceedings "should seemingly be assimilated to that where perjury is set up", the course of the proceedings in general called for in such a case being (at 556) "a hearing in which both the old and the new evidence is weighed together". He continues (at 556-7) -

"The course of such a hearing seems to have varied in different cases. The main problem is whether the old evidence should be reheard or reweighed by reading the record of it. Before the Judicature Act matters were simplified because the first trial and the second were usually held before the same judge without a jury. So when he had heard the new evidence, there was often no need for him to rehear the old orally; he would recall the evidence or refresh his memory from the record and so weigh the old against the new.

However, this course might not be followed; sometimes all the evidence was reheard orally. At other times the court had no record of the first trial to reread. The Chancellors on occasion did not try disputed facts themselves, but sent an issue to a common law court to be tried by jury. The common law courts kept no records of evidence. Both the first and the second trials might be sent to a common law court and then it seems obvious that the second jury must have heard all the first evidence repeated orally.

The Chancellor might however, in sending an issue to a common law jury, retain certain matters for his own additional findings after getting the verdict. When the Chancellor himself heard the new evidence and collated this with his recollection or record of the old evidence, probably no serious problem arose as to onus of proof. It is an obscure point where the onus rested when the court heard the new evidence and reheard the old evidence orally at one hearing."

151 The citations for a hearing in which both the old and the new evidence is weighed together are Hungate v Gascoyne (1846) 2 Ph 25; 41 ER 850; Cotter v Barrymore [1733] EngR 149; (1733) 4 Bro P C 203; 2 ER 138; Partridge v Usborne (1828) 5 Russ 195; 38 ER 1000; Barnesly v Powell (1748) 1 Ves Sen 199, 120, 284[1748] EngR 386; ; 27 ER 930, 1034; Belt's Supp 74, 143[1748] EngR 360; ; 28 ER 460, 482; White v Ivory (1910) reprinted from The Times [1922] 1 WWR at 1222; and Friesen v Braun [1926] 2 WWR 257.

152 These cases are not particularly material to review on the ground of fresh evidence. Hungate v Gascoyne was an application for leave to file a supplemental bill of review (at to which see later in these reasons): the Lord Chancellor said (at 26; 851) that the question was "whether, looking at the case made on the other side and the whole mass of evidence adduced on the former hearing, what was now brought forward was likely to have altered the judgment which the Court then came to". In Cotter v Barrymore fraud was alleged. Partridge v Usborne was also an application for leave to file a supplemental bill of review, and the Lord Chancellor did not say how the evidence was to be weighed. Barnesley v Powell was a fraud case, and it was said (at 120; 930) that there could be relief against a decree "if obtained by fraud and imposition, which infects judgments at law, and decrees of all courts, and annuls the whole in consideration of this court". White v Ivory and Friesen v Braun were both fraud cases.

153 Nonetheless Hungate v Gascoyne suggests what is otherwise to be expected, that "review" on the ground of new matter discovered involves considering the evidence before the court when the original decree was made plus the new matter, and deciding whether there should be a different result. If on the application for leave that was done to decide whether the new matter is likely to have brought a different result, on hearing the bill of review the same would be done to decide whether the new matter does bring a different result, Other cases indicate that this is what happened, for example Thomas v Rawlings (No 3) [1864] EngR 650; (1864) 34 Beav 50 at 53-4[1864] EngR 650; ; 55 ER 551 at 552.

154 A bill of review was not the only way a dissatisfied party could challenge the result in a suit. There could also be an appeal or rehearing in the Court of Chancery or an appeal to the House of Lords, see Daniell, p 1329; Smith pp 700, 712, 733. Until 1851 appeals or rehearings in the Court of Chancery were either before the same judge or before the Lord Chancellor, but there could not be such an appeal or a rehearing after the decree had been enrolled (Daniell, p 1344; Smith pp 701, 733). By 14 & 15 Vic c 83 a Court of Appeal in Chancery was created and invested with the Lord Chancellor's jurisdiction, but there was no provision for taking fresh evidence. An appeal to the House of Lords was brought by petition of appeal, including from the Court of Appeal in Chancery (Daniell, p 1360-1; Smith , p 733), but it could be brought only after the decree had been enrolled and the House of Lords would "not receive evidence which was not laid before the Court below" (Daniell, p 1368; see also Smith p 738). So neither of these procedures enabled the dissatisfied party to challenge the result after the decree had been enrolled on the ground of fresh evidence.

155 The bill of review procedure should be distinguished from the procedure of a bill in the nature of a bill of review. The latter bill was the procedure for impeaching a decree which had not been signed and enrolled (see Mitford 97, 108-12; Daniell, pp 1422, 1425-6; Smith, p 816). Smith describes it as a supplemental bill in the nature of a bill of review, and in Perry v Phelips [1810] EngR 444; (1810) 17 Ves Jun 173; 34 ER 67 Lord Eldon describes it in the same way (at 177-8; 68-9).

156 It should also be distinguished from the procedure of a bill by which a decree was impeached on the ground that it was procured by fraud. That procedure is dealt with separately in Mitford, and Daniell, and not at all by Smith. A case that a decree was procured by fraud will require new evidence, the evidence of the fraud, and so could be seen as akin to the bill of review procedure. Gordon treats such a case as an action for review, while carefully maintaining the distinction between review based on new evidence of matters other than fraud, on the one hand, and review for fraud although based on new evidence, on the other hand (see in particular at 361-2).

157 The distinction is well maintained. First, the bill by which a decree was impeached on the ground that it was procured by fraud was described as an original bill, not a bill of review (Mitford, pp 97, 112-3); Daniell pp 1428-9). Secondly, the bill could be filed without the leave of the court (Mitford p 113; Daniell, p 1428). Thirdly, the new evidence did not have to be evidence that could not have been discovered earlier by the exercise of reasonable diligence (see now Toubia v Schwenke (2002) 54 NSWLR 46 and its discussion of the cases and Gordon's article). Fourthly, the issue was the fraud by which the decree was procured, and the hearing would not be one in which both the old and the new evidence was weighed together. Fifthly, if the fraud was proved the decree would be vacated and the parties restored to their former positions whatever their rights may be (Mitford, p 113; Daniell, p 1429; see Birne v Hartpole [1719] EngR 57; (1717) 5 Bro PC 200; 2 ER 624, 626; Barnesly v Powell): that is, the bill did not procure a different result in the proceedings resolving the rights of the parties, but procured a nil result leaving the rights of the parties unresolved. In truth, the bill by which a decree was impeached on the ground that it was procured by fraud was (and is) an exercise of the equitable jurisdiction to relieve against fraud. It was not a "review" on the ground of new matter discovered.

158 In 1873 the Judicature Act created the High Court and the Court of Appeal. The High Court had original jurisdiction, and the Court of Appeal had appellate jurisdiction "with such original jurisdiction as herein-after mentioned as may be incidental to the determination of any appeal" (s 4). Section 16(1) transferred to and vested in the High Court the jurisdiction of the Court of Chancery, but s 18(1) transferred to and vested in the Court of Appeal "all jurisdiction and powers of the Lord Chancellor and of the Court of Appeal in Chancery, in the exercise of his and its appellate jurisdiction". By s 22, the jurisdiction transferred to and vested in the High Court and the Court of Appeal "shall cease to be exercised, except by the said High Court of Justice and the said Court of Appeal respectively, as provided by this Act".

159 In the cases considered in the judgments of Handley JA and Ipp AJA the English courts thereafter addressed or touched upon, sometimes rather obscurely, whether the bill of review procedure survived to enable an action to be brought on the ground of fresh evidence with a view to a different result in the original action. The cases sometimes suffer from failure clearly to distinguish between a bill of review and a bill in the nature of a bill of review, and between those bills and an original bill impeaching a decree on the ground that it was procured by fraud.

160 One question was, or at least could have been, whether what was transferred to and vested in the Court of Appeal included a bill of review procedure. If that were so, separate proceedings to set aside an order which had been entered could not be brought in the High Court. Another and consequential question was, or at least could have been, whether if transferred to and vested in the Court of Appeal the bill of review procedure could in some manner be taken up in the Court of Appeal. The overarching question was, or at least should have been, whether the new court structure and arrangements made the bill of review procedure otiose and impliedly did away with it, regardless of what was transferred to and vested in the respective courts.

161 In Flower v Lloyd (1877) 6 Ch D 297 Jessel MR's obiter observations accepted the continued availability in the High Court of the bill in the nature of a bill of review procedure, but without reasoning. That procedure was much more obviously an exercise of original jurisdiction passing to the High Court, since the court had not finally disposed of the proceedings. Its current manifestation is an application to reopen prior to entry of judgment, see for example Wentworth v Woollahra Municipal Council (No 2) [1982] HCA 41; (1982) 149 CLR 672; Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300.

162 In Falcke v The Scottish Imperial Insurance Company (1887) 57 LT 39 Kay J firmly accepted the continuance of the bill of review procedure, saying that nothing in the Judicature Act affected the relevant law and practice of the court. His Lordship did not further explain his reasons, and apparently disregarded in re St Nazaire Company (1879) 12 Ch D 88. Kekewich J gave relief in in re Scott & Alvarez's Contract (1895) 1 Ch 596, but on concession that Falcke v The Scottish Imperial Insurance Company did not permit argument to the contrary. In Boswell v Coaks (No 2) (1894) 6 R 167 the Lord Chancellor made observations which could be read as accepting the continuance of the bill of review procedure, but it was a fraud case and, for the reasons given by Handley JA and Ipp AJA, the observations should not be so read. So far as these cases supported the continued availability of the bill of review procedure, albeit in a different manifestation, they were far from satisfactory.

163 In in re St Nazaire Company the court considered that a procedure apparently regarded as equivalent to an application for a rehearing in the Court of Chancery had not survived the Judicature Act. Handley JA and Ipp AJA have described the course of that case, and have set out the relevant passages. The case was complicated by the fact that the hearing was to be after dismissal of an appeal, but the essential reasoning was that the rehearing was appellate in nature and under the Judicature Act the power of rehearing lay in the Court of Appeal alone.

164 On one view the court answered only the first of the questions earlier suggested. But the reasoning of Jessel MR went further, and I repeat (from 96-7) -

"Then it was said that under the old practice the Court of Chancery, that is, the judges of the Court of Chancery, the Lord Chancellor, the Master of the Rolls, and the Vice-Chancellor, could rehear not only their own decrees, but the decrees of their predecessors, that is, those whom they succeeded. No doubt it was so, but does that jurisdiction continue? If it does, the most extraordinary results will follow. The power to rehear was confined by General Orders. The time allowed had been 20 years but at last it came down to 5 years, and the power to appeal given by the new rules is only for 1 year; therefore, if such a power were considered to remain vested in the Judges of the High Court it would follow that after the lapse of 1 year you could not appeal at all, but you might at any time within 5 years present your petition of rehearing to the Judge himself, and then, if he refused it on the ground that he thought he was right before, which would be the most probable result, you could then appeal to the Appeal Court, and thereby get 5 or 6 years for appealing instead of 1. That would be so remarkable a result that hardly anyone could believe that such was the true construction of the Act of Parliament or the rules."

165 This went a long way towards answering the overarching question. The new appellate right, limited to a year from the original decision, was inconsistent with the old appellate right extending for five years, and the old appellate right was therefore no longer available The case is curious in that the orders in question must have been entered, since there had been an appeal. It had been argued (at 92) that the rehearing was analogous to "a supplemental bill in the nature of a bill of review" but the court did not clearly consider that procedure, let alone the different bill of review procedure.

166 Fry and Lopes LJJ in in re Suffield and Watts; ex parte Brown (1888) 20 QBD 693 at 697 and 698 saw in re St Nazaire Company as encompassing the bill of review procedure; they said that it showed that when an order had been "drawn up and perfected" the first instance court had no jurisdiction to reconsider the matter, or to vary or discharge the order. This position was endorsed in Preston Banking Company v William Allsup & Sons [1895] 1 Ch 141, Ainsworth v Wilding [1896] 1 Ch 673, and in re Harrison's Share Under a Settlement (1955) Ch 260.

167 In Charles Bright and Co Ltd v Sellar [1904] 1 KB 6 Cozens-Hardy LJ accepted the authority of in re St Nazaire Company, but also said that an action could be brought on the ground of fresh evidence. The relevant passages are set out in the judgments of Handley JA and Ipp AJA. His Lordship appears to have regarded in re St Nazaire Company as a case of rehearing without any question of fresh evidence, and to have distinguished it for that reason. It was not - it was a fresh evidence case. His Lordship also regarded Boswell v Coaks (No 2) as supporting action on the ground of fresh evidence. It did not. Like their Honours, I respectfully do not think Charles Bright and Co Ltd v Sellar is an authority of weight.

168 A more definitive decision in England came in in re Barrell Enterprises (1973) 1 WLR 19. The Court of Appeal held that, apart from where the judgment had been obtained by fraud, an action would not lie to set aside a judgment on the ground of fresh evidence. The basis for the decision appears from their Lordships' approval (at 27) of Jessell MR's observation in in re St Nazaire Company at 97 that the old jurisdiction of Chancery judges to order a rehearing was vested by the Judicature Act not in the High Court, but in the Court of Appeal. Although not further explained by their Lordships, the point must have been that a rehearing on the ground of fresh evidence was appellate in nature and lay in the Court of Appeal alone. This answered the first question earlier suggested, but it is not clear whether it carried with it an answer to the second or overarching question.

169 Their Lordships also said (at 27) that even if technically the High Court was at first clothed with the jurisdiction, the cause of action "has long since lapsed because applications for rehearing on the ground of fresh evidence have for generations been made only to the Court of Appeal". This effectively answered the overarching question, although on the robust basis of lapse from disuse (but disuse was no deterrent in relation to discovery against a witness in Norwich Pharmacal Co v Customs and Excise Commissioners [1973] UKHL 6; [1974] AC 133). Their Lordships were plainly disposed to the view that the new court structure and arrangements had made the bill of review procedure otiose and impliedly done away with it, see at 24-5 -

"We are reluctant to find carried forward into this century procedures which were devised for review or rehearing or new trial at a time when the Court of Appeal did not exist. We can accept without difficulty the notion that if a judgment has been obtained by fraud an action can be brought to set it aside. But when it comes to setting aside a judgment on the ground that fresh evidence has been obtained it appears to us highly desirable that the Court of Appeal alone should have jurisdiction. Then the rules as to time for appeal, with the discretion to allow an appeal out of time, will apply. So will the code for deciding when fresh evidence should be admitted, ... ".

170 In Taylor v Lawrence [2002] EWCA Civ 90; [2002] 2 All ER 353 it was held that the Court of Appeal had a residual jurisdiction albeit carefully confined, to reopen an appeal after the judgment has been drawn up. In re Barrell Enterprises was considered. I do not think it was disapproved so far as it was held that the bill of review procedure had not survived into the twentieth century. Rather, the residual jurisdiction was found in the Court of Appeal's modern jurisdiction, as a qualification to the general principle of finality of litigation . The authority of the High Court precludes our taking that course, and we were not invited to take it.

The bill of review procedure in New South Wales

171 The Supreme Court of New South Wales was established by the Charter of Justice 1823. It was a Court of Equity with the power and authority that the Lord Chancellor had within England for the due exercise of its equitable jurisdiction. The bill of review procedure was originally available in the Court, and was recognised in the mid-nineteenth century (see s 31 of 16 Vic No 3 and Hosking v Terry [1862] EngR 903; (1862) 15 Moore 493; 15 ER 581).

172 In 1840 provision was made for appeal from the judge exercising the equitable jurisdiction of the Court to two other judges of the Court (4 Vic No 22, s 21). The appeal had to be brought within 14 days from pronouncement of the decree. According to Parker's Practice in Equity, 2nd ed, p 120, the appeal "was not in terms called a re-hearing, but the Full Court in McLaughlin v Little inclined to the opinion that it was a re-hearing". The case is available as M'Laughlin v Little in (1845) Reserved and Equity Judgments 19, and the inclination (at 21) was to a rehearing rather than appeal "in a strict sense". An express statement that an appeal is by way of rehearing may make it possible to imply power to receive further evidence (see ex parte Currie; re Dempsey (1968) 70 SR 1; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259; Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1). But the nature of the appeal was not decided, and the further implication of power to receive further evidence was not attempted.

173 In 1880 the 1840 provisions were in substance repeated, the appeal being from the first instance judge to the full Court (44 Vic No 18, s 70). But in addition it was expressly provided that the appeal should be by way of re-hearing, and the full Court was expressly given a discretion to receive further evidence but, on appeals from a decree or order upon the merits at the trial, on special grounds only (ibid, s 71, 73).

174 Provisions to like effect were included in the Equity Act, 1901 (ss 81-2, 84). That position has remained, and is now found in s 101 (appeal) and s 75A (further evidence) of the Supreme Court Act 1970. The time for appeal is now 28 days.

175 The Supreme Court Act was in some respects the New South Welsh equivalent of the Judicature Act, although many of the features of the Judicature Act system had been taken up piecemeal at earlier times. It continued the Supreme Court of New South Wales as formerly established (s 22). It gave the Court all jurisdiction necessary for the administration of justice in New South Wales (s 23), and for more convenient despatch of business the Court was divided into the Court of Appeal and Divisions (s 38). But the Court's former equitable jurisdiction was not transferred to or vested in some part of the Court alone; rather, it was provided that the Court "shall administer concurrently all rules of law, including rules of equity". This has been described as a fusion of the courts which administered the two systems of law and equity: O'Rourke v Hoeven (1974) 1 NSWLR 622 at 626.

176 Thus there was not in New South Wales the equivalent of transfer to and vesting in a court of appeal of the appellate jurisdiction of the Lord Chancellor and the Court of Appeal in Chancery. The English cases are not directly in point, and observations in Australian cases upon the English cases, or with reference to courts within Australia with a history closer to that of the English courts, are not necessarily of assistance.

177 The plaintiffs relied on Cussen J's reference in Ronald v Harper [1913] VLR 311 at 318 to "the same considerations as former was the case on an application for leave to bring a bill of review", but the context was a setting aside for fraud. The observations of Higgins J in Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR (Pt 1) 642 at 670-1 and in the joint judgment of Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ in DJL v The Central Authority at 244-5, to which Ipp AJA refers, are not directed to the position of the Supreme Court of New South Wales. The latter observations could endorse the view that the bill of review procedure was appellate in nature, but what might follow from that is another matter.

178 Gamser v The Nominal Defendant involved proceedings in the Supreme Court of New South Wales. Aickin J in effect said (at 154) that the general principle in Bailey v Marinoff, which also involved proceedings in the Supreme court of New South Wales, applied in a "a situation of fresh evidence". This is against the appellant, but the survival of the bill of review procedure does not appear to have been in question; it is therefore far from determinative.

179 In Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 231 the impugned judgment was a judgment of the Federal Court, which has not had a pre-Judicature Act history. It was sought to set aside the judgment on the ground of fraud. The reasons of Spender, Gummow and Lee JJ noted (at 238) that there had been some discussion of whether a separate proceeding, outside that provided for in the appellate structure, could be brought to seek a fresh trial on the ground of fresh evidence not going to establish fraud but going to the issues at the earlier trial. Their Honours referred to the bill of review procedure, but contemplated the possibility that the equitable jurisdiction to set aside a judgment on the ground of fresh evidence, absent fraud -

" ... no longer exists, having been supplanted by the statutory appellate system, or ... is otiose, the occasion for its exercise no longer arising given the remedying by the modern legislation of the previously perceived deficiencies in the old common law procedures for review by writ of error and the motion for new trial". (at 240)

180 This went beyond the bill of review procedure for challenging a decree in equity, and their Honours said that it was unnecessary to express a concluded view. Nonetheless it points to what I consider to be the proper approach to survival of the bill of review procedure in the Supreme Court of New South Wales.

181 As was said in in re St Nazaire Company and in re Barrell Enterprises, and probably accepted in DJL v The Central Authority, when under the bill of review procedure the court reheard the case weighing the fresh evidence together with the original evidence, the procedure was appellate in nature. This, it seems to me, is the only sensible view to take. The original trial judge had finished with the case, and the formal act of enrolment had brought to an end the court's disposition of the suit. If leave were given, on the hearing of the bill of review there would be just that, a review with the fresh evidence added to the original evidence. The original decree was not set aside and a new trial held. The original decree remained in place unless and until, as a result of the review, it was varied or reversed.

182 But the label of appellate or something else, for New South Wales, does not matter. Whatever label be put on the procedure, it was supplanted by the statutory appellate system brought about in 1880.

183 Prior to 1880 fresh evidence was not relied on in appeals. Under the pre-Judicature Act procedures so far as imported into New South Wales it could not be relied on, and apart from the inclination to an appeal by way of rehearing in M'Laughlin v Little it was not suggested that it could be relied on. The bill of review procedure was the way, and the only way, in which an enrolled decree could be varied or reversed on the ground of fresh evidence.

184 Since the provisions for appeals in and after 1880 an appellant has clearly been able to rely on fresh evidence, and in the appeal by way of re-hearing the fresh evidence will be considered together with the original evidence with a view to whether there should be a different result, including a new trial. The Court must give leave to bring the fresh evidence. The statutory appellate system performed and performs the same function as the bill of review, and fulfilled and fulfils its purpose.

185 A bill of review could be brought for twenty years; an appeal could and can be brought within a much more limited time. The questions on an application for leave to file a bill of review have been referred to earlier; the questions on an application to bring fresh evidence are similar although not necessarily identical (see for example Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435; Akins v National Australia Bank (1994) 34 NSWLR 155, but the statutory discretion may be more general, see Commonwealth Bank v Quade [1993] HCA 55; (1991) 178 CLR 134 and CDJ v VAJ (No 1)). It would be incongruous for the bill of review procedure to have survived the provisions for appeals in and after 1880. It can not have been intended that, side by side with the right of appeal, an appellant could in separate proceedings seek to have fresh evidence considered together with the original evidence with a view to a different result, perhaps many years later and perhaps after the appellate court had conducted a re-hearing with the same fresh evidence but declined to arrive at a different result.

186 Although these reasons have focussed on fresh evidence, a bill of review could be filed without leave for error of law appearing on the face of the decree. Decrees were lengthy and set out facts on which the decree was founded, so that a dissatisfied party could argue that in law the facts set out did not support the result. So far as the bill of review performed this function, it co-existed with the appeal to the House of Lords, for which the petition of appeal had to be presented within two years of the enrolment of the decree (Daniell, p 1361). This illustrates that there may be two procedures to the one end, and that one should not be over-ready to excise one procedure upon another becoming available.

187 It is perhaps pointless to ask whether the bill of review procedure has survived so as to permit, without leave, separate proceedings seeking to set aside an order on the ground of error of law on the face of the order. Orders are not now prepared in a manner which would accommodate such a challenge. That of itself illustrates how changed procedures bring changes of substance, a phenomenon not unknown in legal history. The caution against over-ready excision remains, and the plaintiffs argued that the continued availability of the bill of review procedure could serve to prevent injustice in the exceptional case. Against this must be balanced injustice capable of being worked through the bill of review procedure, with its opportunities for delay and expense. There is no doubt that the late nineteenth century reforms in legal procedures were intended to improve the administration of justice by promoting timely and final conclusion to litigation, and it would not be consistent with that purpose for the bill of review procedure to have survived.

188 It must be asked, why did and does the statutory appellate system do away with the bill of review procedure?

189 I would prefer not to use the language of jurisdiction to express the restraint on further litigation once proceedings have regularly come to an end, although it is often used (for example in Bailey v Marinoff). The word is used in different senses, and can bring confusion. By s 23 of the Supreme Court Act the Supreme Court of New South Wales has "all jurisdiction which may be necessary for the administration of justice in New South Wales". But that does not mean that it grants relief on a whim. It grants relief because a plaintiff establishes a breach of contract causing loss, or negligence or fraud causing loss, or some other basis for relief available according to law. I would prefer to say that the relief of setting aside an entered order and having a new trial on the ground of further evidence became and is not relief available according to law.

190 Handley JA invokes the proposition stated by Dixon J in R v Wallis [1949] HCA 30; (1949) 78 CLR 529 at 550, that an enactment in affirmative words appointing a course to be followed usually may be understood as importing that the same matter is not to be done according to some other course. The proposition was used to confine a general power to make an award or order determining a dispute because specific provision was then made for orders or awards determining disputes; see also The Queen v Gaudron [1978] HCA 3; (1978) 141 CLR 204 and Huskisson RSL Sub-Branch Club Ltd v Sullivan (1990) 20 NSWLR 332. As a proposition in the interpretation of statutes it is not in point unless the bill of review procedure be regarded as appellate in nature, and then with a degree of extension. It does, however, provide analogous reasoning to the exclusion of a general law remedy upon a statutory remedy becoming available.

191 The bill of review procedure was, as that description suggests, procedural; it was the way in which the Court of Chancery chose to exercise its jurisdiction. Taylor v Lawrence at 369 refers to the difference between the jurisdiction of a court and how that jurisdiction should be exercised. The label original or appellate did not matter. In 1873 in England, and in 1880 in New South Wales, there were other ways of fulfilling the purpose of the bill of review, ways which were not consistent with the continued use of the bill of review procedure. In my opinion it would be preferable to acknowledge that, changing the way in which jurisdiction is exercised, the bill of review procedure is no longer necessary or appropriate.

192 In Minister for Lands and Forests v McPherson (1990) 22 NSWLR 687 it was held that a statutory discretion in the Minister to forfeit or not forfeit a lease did not exclude equitable jurisdiction to grant relief against forfeiture, and there was reference to an assumption that a statute should operate alongside and in harmony with the common law. Exclusion of jurisdiction is not the issue here: the issue is how, in the light of the statutory scheme, the jurisdiction should be exercised. The statutory scheme could hardly operate in harmony with a continued ability to bring separate proceedings seeking to set aside an entered order, whether on the ground of error of law or on the ground of fresh evidence, nor would it be consistent with the purpose of the reforms bringing the statutory scheme that there should be the continued ability. In my opinion, since the 1880 provisions for appeal by way of re-hearing with fresh evidence the bill of review procedure has no longer been available. A single judge of the Equity Division can not set aside orders 1 and 7 made by Einstein J on 9 September 1998 and order a new trial on the ground of discovery of fresh evidence, and the plaintiffs' proceedings must fail for that reason.

193 I do not overlook the plaintiffs' submission that the fact that separate proceedings can be brought to set aside an order and have a new trial on the ground that the order was obtained by fraud shows that the bill of review procedure is still available. I have earlier described the distinction, and the reasons for the distinction, between the bill of review, on the one hand, and the original bill by which it was sought to set aside a decree on the ground that it was procured by fraud, on the other hand. The continued availability of the current manifestation of the latter does not support the continued availability of the former.

194 It should be recorded that Mrs Schipp submitted that, even if the bill of review procedure had survived to the present day, the plaintiffs' proceedings had to fail because first, the plaintiffs had not obtained prior leave to bring the proceedings, and secondly, the plaintiff had not paid the judgment debt or applied to be relieved from the need to do so. Prior leave has already been mentioned; prior payment of the judgment debt is referred to in, for example, Daniel, p 1427. It is not necessary to consider these suggested obstacles to success in the proceedings.

WHETHER RELIEF SHOULD BE GRANTED

195 Under s 75A of the Supreme Court Act further evidence is not received except on special grounds (s 75A(8)), save where it is evidence concerning matters occurring after the trial (s 75A(9)). The jurisprudence collected concerning special grounds generally calls for three conditions to be satisfied, that the evidence could not have been obtained by reasonable diligence for use at the trial; that the evidence is credible; and that the evidence is such that there is a high degree of probability that there would be a different result (for example, Akins v National Australia Bank (1994) 34 NSWLR 155 at 160). The conditions are, however, only guides, and special grounds can be made out in other circumstances (Commonwealth Bank of Australia v Quade; DCJ v VAJ (No 1)). Where special grounds need not be shown the guidance is less, but the public interest in the finality of litigation is of significance (Doherty v Liverpool District Hospital (1991) 22 NSWLR 284).

196 Although being heard in the Court of Appeal, the plaintiffs' proceedings are not an appeal. Section 75A does not apply. For a bill of review evidence must be fresh evidence and, in the words found in Hosking v Terry at 497; 583, such that if brought forward at the trial "it would probably have altered the judgment". The plaintiffs accepted as the statement of the test the formulation of Barwick CJ in McDonald v McDonald at 532 -

"The discovery subsequent to verdict of admissible credible evidence, which could not have been sooner discovered by the exercise of reasonable diligence in the circumstances, and which is of such probative value and significance that, taken with the evidence already given at the trial, it will in all probability be decisive of the issues between the parties in a sense opposite to that of the verdict, is a ground for the granting of a new trial."

197 I proceed accordingly, without debating the matter further.

198 The first category of evidence was that of Mr Comelli. It comprised a few instances of Mrs Schipp saying something possibly reflecting a firm disposition and the hopelessly inadmissible generalisations set out in the reasons of Handley JA. It is impossible to know what lies behind the generalisations, but if it is of the same nature as the particular instances it would not justify them. In the particular instances the ostensible firm disposition may have been the product of Mr Schipp's influence, of the position of control enjoyed by the Schipps over tenants or would-be purchasers, or simply of wrong-headedness on Mrs Schipp's part, and it is also impossible to know what lies behind the particular instances. As explained by Handley JA, the evidence is of matters years earlier in quite different circumstances from those the subject of the proceedings decided by Einstein J.

199 It is not as if the plaintiffs were brought to contend that Mrs Schipp's past property interests and dealings showed her to be worldly-wise only after the trial, since she was extensively cross-examined upon them. Assuming that it is to be regarded as fresh evidence, the evidence of Mr Comelli is all but worthless. It certainly would not in all probability lead to a different result.

200 The second category of evidence was that of Mr Murphy, including his letter of 10 November 1994. To the contrary of his evidence at the trial, Mr Murphy had been at the meeting on 8 December 1988, and Mrs Schipp was also at the meeting. I would prefer to leave undetermined whether Mr Murphy's evidence could not be regarded as fresh evidence because he had given evidence at the trial - later recollection may be different from later admission of perjury. For the further reasons indicated by Handley JA, that there was not the due diligence on Mr Harrison's part which would have brought to light Mr Murphy's 1994 recollection and that the evidence would not in all probability lead to a different result, grounds for setting aside the orders made by Einstein J are not made out.

201 The third category of evidence was that going to Mr Baird's file notes. Dr Strach's report raised some questions to which there are many possible answers not involving malpractice in creation of the file notes, and lead nowhere. There was nothing fresh about the file notes of 27 and 31 May 1990, the internal inconsistency and any inconsistencies with what had truly happened being known or apparent to the plaintiffs at the time of the trial. The plaintiffs added the speculation (for that is what it was) that Mr Baird had used the letter from Mr Burke to Mr Lewis to create the file note of 31 May 1990, but that letter had been in evidence at the trial. All this was no more than an attempt to put a different case from that which could have been put, on the same materials, at the trial. There is in truth no question of fresh evidence at all. It is not necessary to consider the possible significance for the credibility of Mr Baird, and thereby for the findings about the conduct of Mrs Schipp, Mr Harrison and Mr Cameron.

202 The plaintiffs properly submitted that the further evidence should not be seen in compartments, but should be looked at overall for its significance to the result of the trial. Looking at it overall, in my opinion grounds have not been made out for the relief claimed in the proceedings.

203 I agree with the orders proposed by Handley JA.

204 IPP AJA: I agree with the reasons to be published by Handley JA. I set out below my own reasons for concluding that the old Chancery bill of review procedure has long been abolished in New South Wales. I agree with the views expressed by Handley JA concerning the material said to be fresh evidence and as to the conflict of interest on the part of Mr Harrison. I agree with the orders proposed by his Honour.

The jurisdictional question and the parties' contentions

205 The defendant brought proceedings against the plaintiff, alleging principally that he had breached fiduciary duties he owed to her. Einstein J held in favour of the defendant and ordered the plaintiff to pay her equitable compensation. On appeal, this judgment was affirmed in part and varied in part. The orders thereupon made by this Court were duly entered.

206 Thereafter, the plaintiff commenced a new action in the Equity Division, seeking orders setting aside the orders made by the Court of Appeal and Einstein J and claiming a new trial. The basis of the plaintiff's cause of action is the assertion that fresh evidence, not involving fraud, has been discovered that, if available before Einstein J, would have led to a different result.

207 The defendant contends that the Supreme Court has no jurisdiction to entertain such an action and challenges the plaintiff's right to bring it. The issues that so arise have been referred to this Court for decision.

208 For the purposes of these reasons I shall assume that the judgment of Einstein J was given entirely within the equitable jurisdiction of this Court.

209 Mr Gageler SC (with whom Mr Lucarelli appeared for the plaintiff) submitted, in summary, that:

(a) Prior to the Judicature Act 1873 (UK) (36 and 37 Vict 66), the Court of Chancery - by its bill of review procedure - had jurisdiction to set aside final decrees entered in Chancery on the ground of fresh evidence not involving fraud.

(b) This jurisdiction survived the Judicature Acts as well as the equivalent New South Wales legislation (in particular ss 21 and 22 of Act 4 Vict. 22 (1840), and s 71 of the Equity Act (1880) 44 Vict. 18). It also survived s 75A of the Supreme Court Act 1970.

210 In support of his principal submissions, Mr Gageler argued further:

(a) The Supreme Court of New South Wales retains its equitable jurisdiction to set aside a judgment on the ground of fraud; that jurisdiction is properly invoked by way of a separate action (although it may also be invoked in an application to the Court of Appeal for a new trial: Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691) and is properly characterised as a continuation of the equitable jurisdiction formerly exercised on a bill of review; just as the equitable action of review on the ground of fraud survives, so does the equitable action of review on the ground of fresh evidence.

(b) Comments made by Jessel MR in Flower v Lloyd (1877) 6 Ch Div 297 support the continuing existence of the equitable action of review on the ground of fresh evidence, and the reasoning apparently to the contrary of Jessel MR In re St Nazaire Company (1879) 12 Ch D 88 (often quoted as authority for the proposition that the old Chancery procedures for setting aside judgments were abolished by the Judicature Act) was directed to jurisdiction to entertain a proceeding in the nature of a petition for rehearing and not to an action in the nature of a bill of review.

(c) The Judicature Act conferred jurisdiction on the Court of Appeal to hear all appeals, and provided for appeals to be by way of rehearing; the Act thereby displaced only those old Chancery procedures that were appellate in nature and not those that were exercised by way of original jurisdiction; the bill of review procedure was based on jurisdiction original in nature and therefore it survived the Act; to the extent that In re St Nazaire Company and In re Barrell Enterprises (1973) 1 WLR 19 differ, they are wrong.

(d) Moreover, the pre-Judicature Act jurisdiction of the Court of Chancery to "rehear" a case differed from its jurisdiction to "review" a case; therefore the jurisdiction of the Court of Appeal to hear appeals "by way of rehearing" did not include the bill of review procedures.

(e) Cases such as Orr v Holmes and Another [1948] HCA 16; (1948) 76 CLR 632, McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418 and McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 support the proposition that the action contended for by the plaintiff exists.

211 Mr Slattery SC (with whom Mr Hennessy appeared for the defendant) disputed these arguments and, in summary, submitted that:

(a) By the Judicature Act of 1873, the entire Chancery bills of review system (save for the remedy based on fraud) was transferred to the newly constituted Court of Appeal, and, was thereby abolished; he relied particularly on In re Barrell Enterprises for this proposition.

(b) There was no difference, in substance, between the Judicature Acts and the equivalent New South Wales legislation, and the latter legislation had the same result.

(c) The bill of review procedure involved a "rehearing" and under the relevant New South Wales legislation (in particular s 71 of the 1880 Equity Act) the Full Court of New South Wales acquired the sole jurisdiction (to which this Court has succeeded) to hear claims that were based on that procedure

(d) In consequence, the bill of review procedure did not survive in this State, at least after the Equity Act.

The finality of litigation principle and In re Barrell Enterprises

212 Ever since the Judicature Act the principle of finality in litigation has been of fundamental importance to our legal system. Its significance has been the foundation of innumerable decisions. It is sufficient to refer in this regard to Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672, Nintendo Company Limited v Centronics Systems Pty Limited [1994] HCA 27; (1994) 181 CLR 134 at 168 and Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300.

213 Were the plaintiff's contentions to be correct, there would be a strong incentive, even after judgment had been delivered by the highest court in the land, for the unsuccessful party to continue to investigate the facts in the hope of discovering some fresh witness or fresh material that could make a difference to the result. Years later new proceedings could be launched with a view to setting aside the judgment. Uncertainty as to the validity of the final judgment would prevail, with all its concomitant disadvantages to individuals and the community - including much increased costs and delay of a kind that would be familiar to the Jarndyce family. The finality of litigation would be subverted: Autodesk Inc v Dyason (No 2) at 310 per Brennan J.

214 It is no wonder then that in In re Barrell Enterprises (where the same point was raised) Russell LJ (who delivered the judgment of the Court - the other members being Karminski and Cairns LJJ) commenced his discussion of the issue by saying (at 24):

"The next question is whether Brightman J, had any jurisdiction to hear an application to set aside the order of Pennycuick V-C. We are reluctant to find carried forward into this century procedures which were devised for review or rehearing or new trial at a time when the Court of Appeal did not exist. We can accept without difficulty the notion that if a judgment has been obtained by fraud an action can be brought to set it aside. But when it comes to setting aside a judgment on the ground that fresh evidence has been obtained it appears to us highly desirable that the Court of Appeal alone should have jurisdiction. Then the rules as to time for appeal, with the discretion to allow an appeal out of time, will apply. So will the code for deciding when fresh evidence should be admitted ..."

215 The contention that the plaintiff in this case advances was argued and rejected on two grounds in In re Barrell Enterprises. Russell LJ held, firstly, following In re St Nazaire Company, that the Chancery bill of review procedure involved a rehearing and the jurisdiction to order such a rehearing was appellate and was vested by the Judicature Act in the Court of Appeal and not in the High Court. Secondly, he said (at 27):

"Even if, technically, the High Court was at first clothed with this jurisdiction we are of opinion that this cause of action has long since lapsed because applications for rehearing on the ground of fresh evidence have for generations been made only to the Court of Appeal".

216 In Australia, ever since Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, it has been accepted 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. That general proposition is no doubt subject to the rule that a judgment apparently regularly obtained may be impeached upon the ground of fraud ....". per Aickin J in Gamser v The Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 at 154. The exception to this principle, accepted in Taylor v Lawrence [2002] EWCA Civ 90; [2002] 2 All ER 353, is not recognised in Australia.

The coming into force of the Judicature Act

217 As the arguments raised by the plaintiff require the Judicature Act to be construed, it would be appropriate to say something about the climate under which it was passed.

218 Sir William Holdsworth in Vol 1 of History of English Law, in describing (at 437 et seq) the delays that were inherent in the procedures of the Court of Chancery prior to the passing of the Judicature Acts, said (at 438):

"The existing delays were aggravated by the system of rehearings and appeals which a determined litigant could demand upon the most trivial points. ... Upon these appeals and rehearings, other than appeals to the House of Lords, new evidence could be adduced (Maddock, Chancery (Ed. 1815) ii 439-440). This was clearly a practice which tended still further to lengthen the proceedings. As Beames, the secretary to the Chancery Commission of 1826, said justly, `a right of litigation which is limited alone by the means of gratifying it, places the poor suitor at the mercy of his rich antagonist; and at the same time operates this hardship upon the other suitors of the court, that their causes are necessarily postponed to make way for the discussion and rediscussion of the same question between the same parties"

219 The learned author dealt with the delays that prevailed in obtaining and drafting decrees in Vol 9 at 365 et seq, saying (at 368):

"Even when the decree had been drafted, the suitor was by no means out of the wood. At any time before enrolment a petition for rehearing could be made to the Chancellor or other Judge who had heard the case; and for that reason no one was in any hurry to enrol the decree. In some cases, even, it was possible to vacate the enrolment. If this was not possible, the aggrieved party could still proceed by Bill of Review".

And concluded (at 369):

"It thus appears that the impossible attempt of the Court to produce a perfect decree prevented any kind of decent finality".

220 The depth of public feeling at the delays and other abuses in the system was graphically described by Professor Sunderland in The English Struggle For Procedural Reform (1926) 39 Harv L Rev 725. Sunderland made the point (at 727) that the Judicature Act was passed after:

"... the long war of liberation waged in England against the tyranny of inherited legal traditions".

221 It is noteworthy that (1850) 13 & 14 Vic 35 (one of the earlier attempts to simplify Chancery procedure and to reduce the delays inherent in it), commences:

"Whereas proceedings in the High Court of Chancery in England are attendant with great delay and expense, which it is expedient to diminish".

222 The bill of review procedure played its part in these delays.

The Judicature Act and its influence on New South Wales legislation

223 The Judicature Act was passed on 5 August 1873. According to Holdsworth (op cit Vol 15 at 128) the Act provided a comprehensive code of civil procedure.

224 By s 16 the jurisdiction of the High Court of Chancery was transferred to the High Court of Justice. The Court of Appeal was established by s 4 and acquired such original jurisdiction "as may be incident to the determination of any appeal". By s 18 all jurisdiction and powers of the Court of Appeal in Chancery were transferred to and vested in the Court of Appeal established by the Act. Section 22 provided:

"From and after the commencement of this Act the several jurisdictions which by this Act are transferred to and vested in the said High Court of Justice and the said Court of Appeal respectively shall cease to be exercised, except by the said High Court of Justice and the said Court of Appeal respectively as provided by this Act".

225 Meagher Gummow and Lehane state in their work Equity Doctrines and Remedies 3rd ed at para 215:

"All the Australian colonies, with the exception of New South Wales, followed fairly quickly in their parent's steps by enacting statues modelled on the Judicature Act .... The present statutory equivalents of ss 24 and 25 in the English Act of 1873 are found in New South Wales in the Supreme Court Act 1970 ss 57-64 and the Law Reform (Law and Equity) Act 1972".

226 As the learned authors point out (at para 216) most of the changes contained in the Judicature Act were adopted in New South Wales long before the 1970 Supreme Court Act. It is sufficient to note that by s 70 of the Equity Act 1880 (NSW) any person aggrieved by any decree or order of the Court (including an equitable decree) was given the remedy of appealing to the Full Court and by s 71 all appeals were required to be by way of rehearing.

The meaning of "rehearing"

227 The term "rehearing" is capable of different meanings. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor [1976] HCA 62; (1976) 135 CLR 616 Mason J said (at 619) that the most notable example of an appeal by way of rehearing is the appeal to the English Court of Appeal provided for by the Judicature Act. His Honour remarked (at 619-620):

"It was provided that the appeal should be by way of rehearing and that the Court should have power to take fresh evidence and draw inferences of fact ... The appeal had its origin in the jurisdiction of the Court of Appeal in Chancery established by 14 and 15 Vict. c 83 to rehear cases determined in Chancery. This appeal by way of rehearing involves rehearing of the cause at the date of the appeal, that is `by trial over again on the evidence used in the Court below; but there is special power to receive further evidence' (In re Chennell; Jones v Chennell (1878) 8 ChD 492 at 505). On such an appeal the rights of the parties might be determined by reference to the circumstances as they then exist and by reference to the law as it then exists; the appellate Court may give such judgment as ought to be given if the case at that time came before the Court of first instance. But this appeal by way of rehearing did not call for a fresh hearing or hearing de novo; the Court does not hear the witnesses again".

228 In Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission & Ors [2000] HCA 47; (2000) 203 CLR 194 Gleeson CJ, Gaudron and Hayne JJ said (at 202 to 203):

"If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing".

229 Nevertheless, as Mason J observed (at 620) in Builders Licensing Board v Sperway Constructions (Syd) Proprietary Limited & Anor the term "rehearing" has also been used to describe a hearing (usually called an appeal de novo) where the appellant starts again and has to make out his case and call his witnesses.

The nature of the bill of review procedure: did it involve a rehearing?

230 The object of a bill of review was to "examine and reverse decrees signed and enrolled": A Treatise on the Pleadings in Suits in the Court of Chancery, Mitford (Lord Redesdale), 5th Ed at 97; Daniell's Chancery Practice, Vol 2, 5th Ed (1871) at 1422. A bill of review might be brought upon error of law appearing in the body of the decree or upon discovery of new matter: Mitford op cit at 101; Daniell op cit at 1422.

231 A plaintiff did not have the automatic right to file a bill of review based on newly discovered facts; leave of the Court was required. The application for leave to file the bill was made by petition for rehearing or on motion: Daniell op cit at 1423.

232 In a petition or application for leave, the petitioner or applicant had to show that; according to Daniell (at 1423):

"[T]he matter so discovered has come to the knowledge of himself and of his agents for the first time since the period at which he could have made use of it in the suit, and that it could not, with reasonable diligence, have been discovered sooner; and secondly, that it is of such a character that, if it had been brought forward in the suit, it might probably have altered the judgment" (per Lord Kingsdown in Hosking v Terry (1862) 15 Moore 493 at 504[1862] EngR 903; ; 15 ER 581 at 585).

233 Leave would ordinarily be granted if:

"On the former evidence in the cause, coupled with what is now adduced, and with no other or further evidence, it would have induced me to make a different decree to that which I then pronounced" (per Romilly MR in Thomas v Rawlings (1864) 34 Beav.50 at 54; affirmed on appeal 11 LT 721); see also Hungate v Gascoyne (1846) 2 PH 26.

234 It is difficult to determine from the older authorities precisely what procedure was involved in the hearing once leave to proceed with a bill of review was granted. According to an article by Mr D M Gordon QC entitled "Fraud or New Evidence as Grounds for Actions to Set Aside Judgments" - Pt II (1961) 77 LQR 533 at 555:

"In all cases, the plaintiff must begin by producing his new evidence, and by showing that that this is newly discovered, and not discoverable before by exercise of diligence. Unless this new evidence is strong and convincing, the Court may dismiss the action at once. But in dealing with even this new evidence, the Court may decide to treat it as a separate subject - matter, and hear evidence on both sides before going on, or may treat the new evidence as merely a portion of an integral case, in which the plaintiff must submit all of his evidence called at the first trial as well as his new evidence".

Later, (at 556-557) the learned author wrote:

"So in general review calls for a hearing in which both the old and the new evidence are weighed together.

The course of such a hearing seems to have varied in different cases. The main problem is whether the old evidence should be reheard or reweighed by reading the record of it. Before the Judicature Act matters were simplified because the first trial and the second were usually held before the same judge without a jury. So when he had heard the new evidence, there was often no need for him to rehear the old orally; he would recall the evidence or refresh his memory from the record and so weigh the old against the new.

However, this course might not be followed; sometimes all the evidence was reheard orally. At other times the court had no record of the first trial to reread."

235 There are older cases in which the bill of review procedure is described as a "rehearing". I shall give some examples of cases of this kind.

236 In Perry v Phelips (1810) 17 VS.Jun.173 at 178, bill of review proceedings, being an objection (to a decree) on the ground of "matter of law apparent" were said by Lord Eldon to be "the subject of a rehearing". To similar effect is Oldham v Stonehouse (1838) 3 M & C 317.

237 In Thomas v Rawlings Romilly MR, having given the petitioner leave to file a bill of review on the ground of new evidence, said (at 56) that the respondents "must have an opportunity of meeting the case now suggested, and which will be made at the rehearing of the case."

238 In Maybery v Brooking (1855) 7 De G. M & G 673: 2 Jur.N.S.76 judgment had been given by Kindersley V-C. The plaintiff considered that all the materials in the case were not fairly before the Vice-Chancellor and applied to him to "rehear the cause". The application was granted, but the Vice-Chancellor "on the rehearing" adhered to his former opinion "and dismissed the bill without costs". The plaintiff appealed to the Court of Appeal who considered that they were entitled to rehear the matter, themselves.

239 Mr Gageler referred to Charles Bright and Company Limited v Sellar (1904) 1 KB 6 where Cozens-Hardy LJ said (at 11):

"It is important to remember that in the Court of Chancery, until comparatively modern times - that is to say, until the reign of Charles II - there was no appeal from the Lord Chancellor to any higher tribunal, but an opportunity was afforded of correcting decisions by means of a rehearing, which might be before the same or any other judge. This right of rehearing could, however, only be exercised before a decree or order had been enrolled, up to which time it was not considered to be, in the full sense of the term, a record of the Court. If an enrolled order was bad on the face of it, a means existed for correcting such an order by a bill of review."

240 Mr Gageler submitted that these remarks showed that a bill of review was not a rehearing. But the older authorities to which I have referred, as well as the article by Mr Gordon QC, show that, at least on occasions - if not as a rule - the bill of review procedure directed at enrolled decrees was described as a rehearing.

241 In any event, I repeat that where leave to proceed with a bill of review was required, a petition for rehearing was sought. The proposition that a successful petition for rehearing would not result in a rehearing but in some other kind of procedure known as a review is incongruous. Rather, it seems to me, the bill of review procedure involved a rehearing at which the decree, previously made and enrolled, would be reviewed.

242 It is sufficient to state that, at a rehearing pursuant to a bill of review based on new matter, it would often be the case that the new evidence would be led and would be weighed against the evidence already led at the original hearing. That is to say, the bill of review procedure, generally, involved what in modern times is generally accepted as an appeal by way of rehearing.

The bill of review distinguished from a bill impeaching a judgment for fraud

243 Before examining the authorities dealing with the effect of the Judicature Act on the bill of review procedure, it is necessary to explain how the pre-Judicature Act bill for impeaching decrees upon the ground of fraud differed from a bill of review.

244 A bill for impeaching a decree upon the ground of fraud was not a bill of review but a separate bill of a different kind: see Daniell op cit at 1422 and 1428, Mitford op cit at 97).

245 Unlike a bill of review, a bill for the impeachment of a decree on the grounds of fraud could proceed without the leave of the Court: Daniell 5th Ed at 1428 (although Gordon, op cit, at 546, suggests that leave for a bill impeaching a judgment on the grounds of fraud was required from 1860).

246 A significant difference between a bill impeaching a judgment for fraud and a bill of review involved the nature of the hearing at which the original decree was challenged.

247 When a judgment was sought to be impeached on the ground of fraud, the position was as described by James LJ in Flower v Lloyd (at 302):

"But that must be done by a proceeding putting in issue that fraud, and that fraud only. You cannot go to your adversary and say, `You obtained the judgment by fraud, and I will have a rehearing of the whole case' until that fraud is established. The thing must be tried as a distinct and positive issue; `you' the Defendants or `you' the Plaintiff `obtained that judgment or decree in your favour by fraud; you bribed the witnesses, you bribed my solicitor, you bribed my counsel, you committed some fraud or other of that kind, and I ask to have the judgment set aside on the ground of fraud.' That would be tried like anything else by evidence properly taken directed to that issue, and wholly free from and unembarrassed by any of the matters originally tried. That was the old course of the law, and there seems to be no reason why that should not be now followed; and if it is true that there was a fraud practised upon the Court, by which the Court was induced to make a wrong decree, the way to obtain relief will be to bring a fresh action to set aside the decree on the ground of fraud."

248 The modern procedure is not dissimilar to that described by James LJ. As Taylor J pointed out in McDonald v McDonald (at 535), a judgment will be set aside on the ground of fraud only after an affirmative finding of the fraud alleged.

249 Thus, ordinarily, in proceedings pursuant to a bill to impeach a judgment on the ground of fraud, the fraud would be tried separately from the other issues in the case and the old and the new evidence would not be weighed together as in the procedure relating to a bill of review.

250 The differences were remarked upon by Gordon (op cit at 557) as follows:

"Where review is not based on fraud, but merely on discovery of new evidence, the course of the proceedings should seemingly be assimulated to that where perjury is set up. New evidence will be directed to the rightness of findings of fact; and so review based on it will have little affinity to review for extrinsic fraud".

251 A further and important distinction lies in the nature of the remedies that follow from the two procedures.

252 As long ago as 1748 it was said by the Lord Chancellor, Lord Hardwicke, in Barnesly v Powell (1748) 1 Ves.Sen.120 that:

"There are several instances of relief, notwithstanding a former decree, if obtained by fraud and imposition, which infects judgments at law and decrees of all courts; and annuls [my emphasis] the whole in the consideration of this court; as held by Lord Macclesfield in Richmond v Taylour."

253 The idea of the court annulling the whole judgment was reiterated by the Earl of Selborne in Boswell v Coaks (No 2) 6 R 167, 86 LT 365, where he spoke of the action to impeach a judgment on the grounds of fraud as being an action, in effect, of judicial rescission.

254 In the case of a bill of review, the decree was not "annulled" in the same sense. In bill of review proceedings, where the new evidence was "directed to the rightness of findings of fact" and where both the old and the new evidence were weighed together, all or some of the issues canvassed at the trial would be re-opened and re-examined and findings would be made concerning them (cf Hungate v Gascoyne). The court might then reverse, alter or explain the decree: Daniell op cit at 1422.

255 In my opinion, the differences between the form and substance of the procedures for the impeachment of a judgment on the grounds of fraud and the Chancery bill of review procedure are such that no inference can be drawn from the court's jurisdiction in regard to the former when determining the court's jurisdiction in regard to the latter.

256 Finally, in this respect, due regard has to be given to the fact that fraud is one of the "pillars which support the entire structure of the equitable jurisdiction" (Meagher Gummow and Lehane, op cit at para 1207). It has always been recognised that "[e]quity has a broad jurisdiction to unravel fraud and set to right its consequences" (per the full Federal Court in Monroe Schneider Associates (Inc) v No 1 Raberem Pty Limited (1992) 37 FCR 234).

The jurisdiction to impeach judgments obtained by fraud is so deeply embedded in equity that very clear words would be required in any legislation before it would be construed as interfering in any way with the powers of a court of equity in this respect. On the other hand, the jurisdiction of a court of equity to review judgments on the ground of fresh evidence stands on a less entrenched footing, and the intention of parliament to transfer that jurisdiction to another court, or otherwise to remove it, would more readily be inferred.

The cases in England since the Judicature Act

257 In Flower v Lloyd final judgment was pronounced against the plaintiff by the Court of Appeal dismissing his action with costs. The plaintiff then applied for leave for a rehearing of the appeal before the Court of Appeal on the ground of the subsequent discovery of new facts showing that the order of the Court of Appeal was obtained by a fraud practised on the Court below. Flower v Lloyd, therefore, was a case where the relief sought was based on an argument that the judgment was tainted by fraud.

Jessel MR accepted that prior to the Judicature Act the Court of Chancery had jurisdiction to give relief in such case. He said (at 300) that under the old practice "you could have brought an original bill to impeach a decree for fraud, and could have got relief if fraud in obtaining the decree was proved". He proceeded:

"There was another totally different class of cases where you discovered subsequent matter which showed that the decree was wrong, although there had been no fraud in obtaining it. That was called a supplemental bill in the nature of a bill of review, which brought the new matter forward, and again enabled the Court to do justice and get rid of the original decree".

Jessel MR went on (at 300) to say, in effect, that there would be no difficulty in the plaintiff obtaining relief from the High Court in respect of the class in which this case fell. He said, however, that the Court of Appeal was "simply a Court of Appeal and nothing more;" hence, the plaintiff failed. Once the Court had determined an appeal it had no further jurisdiction.

The other two members of the Court of Appeal (James and Bagallay LLJ) were of the same opinion but did not express any view as to whether the supplemental bill of review procedure remained alive.

258 Mr Gageler submitted that the remarks made by Jessel MR concerning the supplemental bill of review procedure supported the plaintiff in this case.

259 A supplemental bill in the nature of a bill of review was a bill used to introduce new matter discovered since the making of the decree but before the decree was signed and enrolled: Mitford op cit at 108. Such a supplemental bill differed from a bill of review: Mitford op cit at 97. The procedure akin to a supplemental bill in the nature of a bill of review remains part of our law today: Smith v New South Wales Bar Association [No 2] [1992] HCA 36; (1992) 176 CLR 256. It is different in nature to the bill of review procedure which concerned the reversal, alteration or explanation of an enrolled decree.

260 In my opinion, the fact that Jessel MR was of the view that the supplemental bill in the nature of a bill of review had not been displaced by the Judicature Act says nothing about the continuation of the bill of review procedure based on new evidence. I therefore do not agree with Mr Gageler's submissions in this respect.

261 I turn now to In re St Nazaire Company. In this case Malins V-C ordered that the claim of liquidators of the European Bank be admitted against the St Nazaire Company. The company appealed from this order and its appeal was dismissed with costs. Thereafter, the St Nazaire Company filed a petition alleging that Malins V-C had been misled by the evidence before him and asking, in effect, for an order that it not be required to satisfy the claims of the Bank. Malins V-C ordered that the petition be allowed to proceed. The Bank appealed.

Jessel MR accepted (at 93) that, in essence, the petition was for rehearing and observed (at 96 to 97) with some impatience:

"[I]t is a petition presented to a judge of the High Court to rehear a decision of the Appeal Court ... The mere statement of that would be sufficient to show that the judge below had no jurisdiction. It would be a wonderful result indeed if the Judicature Act empowered a judge of an inferior court to rehear a decision of the Appeal Court which perhaps had reversed his decision. Upon that theory, how long is the thing to go on? If the judge below has this power, he may exercise it by reversing the decision of the Appeal Court where the Appeal Court had reversed his decision.

Then it was said that under the old practice the Court of Chancery, that is, the judges of the Court of Chancery, the Lord Chancellor, the Master of the Rolls, and the Vice-Chancellor, could rehear not only their own decrees, but the decrees of their predecessors, that is, those whom they succeeded. No doubt it was so, but does that jurisdiction continue? If it does, the most extraordinary results will follow. The power to rehear was confined by General Orders. The time allowed had been 20 years but at last it came down to 5 years, and the power to appeal given by the new rules is only for 1 year; therefore if such a power were considered to remain vested in the Judges of the High Court it would follow that after the lapse of 1 year you could not appeal at all, but you might at any time within 5 years present your petition of rehearing to the Judge himself, and then, if he refused it on the ground that he thought he was right before, which would be the most probable result, you could then appeal to the Appeal Court, and thereby get 5 or 6 years for appealing instead of 1. That would be so remarkable a result that hardly anyone could believe that such was the true construction of the Act of Parliament or the rules."

Jessel MR (at 99) said that he was satisfied upon a fair reading of the Judicature Act that the Court below had no jurisdiction.

Baggallay and Thesiger LLJ each agreed with Jessel MR and each gave additional reasons supporting the conclusion to which he had come.

262 Mr Gageler submitted that In re St Nazaire is not relevant to the present issue as it involved a procedure equivalent to a petition for a rehearing but not a bill of review. I agree that the case was concerned with such a procedure but that does not detract from the force of the remarks of Sir George Jessel and their application to bills of review.

263 The petition for rehearing In re St Nazaire was an essential preliminary step prior to the hearing of a procedure analogous to the pre-Judicature Act bill of review. The remarks of Jessel MR were directed as much to the final process as to the petition of rehearing. The "remarkable" result with which he was concerned was a decision that a bill of review type procedure could ensue (were the petition of rehearing to be successful). The extraordinary delays he described would be the inevitable consequence of recognising the continued existence of such a procedure. This underlies his acerbic comments.

264 In Salt v Cooper (1880) 16 ChD 544 Jessel MR again described the transfer of jurisdiction effected by the Judicature Act. He said (at 549):

"It is stated very plainly that the main object of the [Judicature] Act was to assimilate the transaction of Equity business and Common Law business by different Courts of Judicature. It has been sometimes inaccurately called `the fusion of law and equity'; but it was not any fusion, or anything of the kind; it was the vesting in one tribunal of the administration of Law and Equity in every cause, action or dispute which should come before that tribunal. That was the meaning of the Act".

265 In Quilter v Mapleson (1882) 9 QBD 672 Jessel MR returned to the topic once more. He referred to the practice prior to the Judicature Act in the Court of Chancery in regard to "rehearings" and said (at 676):

"On an appeal strictly so called, such a judgment can only be given as ought to have been given at the original hearing; but on a rehearing such a judgment may be given as ought to be given if the case came at that time before the Court of first instance. This point often arose in the Court of Chancery where there was no strict appeal, but only a re-hearing before a superior Court. .... It was in my opinion intended [by the Rules of Court] to give appeals the character of rehearings, and to authorise the Court of Appeal to make such order as ought to be made according to the state of things at the time".

266 In McGowan v Middleton (1883) 11 QBD 464 Brett MR emphasised the importance of the creation of the Court of Appeal as a feature of the new comprehensive code created by the Judicature Act. He said (at 468) in this regard:

"The great object of the Court of Appeal has been to make litigation as short, as cheap, and as safe for the suitors as is practicable. When first I sat as a judge in the Court of Appeal, it was often presided over by James LJ, one of the greatest of judges: I have never met a judge of a larger mind or more inclined to break down technicalities of equity as well as law; and he acted on the principle that under the Judicature Acts when litigation should arise, all matters in dispute should be before the Court. The fundamental idea of the framers of those Statutes is to be found in the Judicature Act, 1873, s 24 sub-section 7, which enacts that the High Court of Justice and the Court of Appeal shall grant all such remedies as any of the parties may appear to be entitled to in respect of any legal or equitable claim; `so that, so far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any such matters avoided'. Every endeavour has been made to carry out this principle and all the judges have tried to bring litigation to an end as speedily as possible".

267 A dissentient voice was heard in Falcke v The Scottish Imperial Insurance Company (1887) 57 LT 39 where Kay J said (at 39 to 40):

"It was said that the old jurisdiction of the Court of Chancery to allow a bill of review is now abolished. The proposition is startling, and there is no authority in support of it, and in my opinion it is not the law. The old jurisdiction to entertain an action in the nature of a bill of review was unaffected by the Judicature Acts, though the leave to bring such an action is now more usually obtained by summons instead of the long petition, which was formerly necessary".

The judge's observation that no authority supported the abolition of the old bill of review jurisdiction is difficult understand as he was referred to In re St Nazaire Company. Further, in my view, the remarks of Jessel MR in Salt v Cooper and Quilter v Mapleson and Brett MR McGowan v Middleton were quite inconsistent with the continued existence of the bill of review procedure.

268 In re Scott & Alvarez's Contract [1895] 1 Ch 596 Kekewich J exercised the same jurisdiction as that exercised by Kay J in Falcke v Scottish Imperial Insurance Company but it appears (at 623) that counsel conceded that, having regard to Falcke, he "could not here argue to the contrary". The matter proceeded to the Court of Appeal but the jurisdictional issue was not there touched upon.

269 In 1894 the House of Lords delivered their judgment in Boswell v Coaks (No 2). The appellant asserted that a judgment given by the House of Lords had been obtained by the fraud of the respondent. The Earl of Selborne made observations that arguably were suggestive of a view that in substance the old practice of a Court of Chancery applicable to the bills of review may have survived but in a simpler and less technical form. He said (at 366):

"[T]he Court ought to receive such evidence pro and con as is material to the question whether there has really been, since the former judgment, a new discovery of something material in the sense, that prima facie it would be a reason for setting the judgment aside if it were established by proof".

His Lordship, however, was dealing with a case grounded on fraud and, in context, there is much to be said for the view that his observations were intended to apply only to the procedure for the impeachment of a judgment on the grounds of fraud. They were, in any event, obiter.

270 In Ainsworth v Wilding (1896) 1 Ch 673 Romer J was concerned with the jurisdiction of the High Court to deal with a judgment that had been entered but which contained a mistake. He said (at 676 to 677):

"Formerly the Court of Chancery had power to rehear cases which had been tried before it even after the decree had been entered; but that is not so since the Judicature Acts".

In effect, Romer J followed what had been previously decided in Salt v Cooper, Quilter v Mapleson and McGowan v Middleton.

271 Charles Bright and Company Limited v Sellar concerned an action brought to review an order of the High Court on the ground of error in law apparent on the face of the order. The judge before whom the action was heard held that the action could not be maintained and the plaintiff appealed to the Court of Appeal. Cozens-Hardy LJ (who gave the judgment of the Court) pointed out (at 11-12) that, as the order absolute had not been enrolled:

"[t]he procedure by bill of review, therefore, could not have been applied under the old system. A petition of rehearing might have been presented, but that would have been the only remedy. Now it has been held that since the Judicature Act no judge of the High Court has jurisdiction to rehear, such jurisdiction being essentially appellate: In re St Nazaire Company 12 ChD 88.

It seems to follow logically from what has been said that the High Court has now no jurisdiction to hear its own order on the ground of apparent error, by means of an independent action, and that the party complaining must come to the Court of Appeal".

Cozens-Hardy LJ said further (at 12):

"Doubtless there is ample jurisdiction now to deal by fresh action with some matters which were formerly the subject of a bill of review, or of a supplemental bill in the nature of a bill of review. For instance, where a judgment has been obtained by fraud, Birch v Birch (1902) P 130, or where fresh material evidence has been obtained since the judgment which could not have been previously procured Boswell v Coaks (No 2) 6 R 167, an action be maintained. Actions of this nature do not invite the High Court to rehear upon the old material. Fresh facts are brought forward and the litigation may well regarded as new and not appellate in its nature because not involving any decision contrary to the previous decision of the High Court".

His Lordship then went on to approve the view of Kay J in Falcke v Scottish Imperial Insurance Company that a fresh action on the ground of discovery of new material could be maintained.

272 The following comments may be made concerning the remarks of Cozens-Hardy LJ. Firstly, they were unnecessary for the decision and were obiter. Secondly, as I have pointed out, Boswell v Coaks (No 2) was itself a fraud case, the remarks of Lord Selborne in that case were themselves obiter and, in any event, because they were arguably confined to cases of fraud, they are of doubtful authority for the proposition that an action can be maintained to set aside an entered judgment on the ground of new matter not constituting fraud. Thirdly, Cozens-Hardy LJ erroneously treated a bill to impeach a judgment on the grounds of fraud as the equivalent of bill of review or a supplemental bill in the nature of a bill of review. Fourthly, the old jurisdiction to reverse or alter a decree by way of a supplemental bill in the nature of a bill of review was not available when the decree was enrolled; therefore, the earlier supplemental bill jurisdiction provides no support for the existence of a post Judicature Act jurisdiction to allow a "fresh action" to set aside an entered judgment on the ground of new evidence. Fifthly, Cozens-Hardy LJ appears to have approved In re St Nazaire Company, but nevertheless postulated the continued existence of jurisdiction analogous to the bill of review procedure; the two, in my view, cannot stand together.

In my view, Charles Bright and Company Limited v Sellar should not be regarded as an authority of weight.

273 In re Barrell Enterprises Russell LJ said (at 25 to 26):

"In In re St Nazaire Company (1879) 12 ChD 88, a Chancery judge entertained a petition for rehearing and the Court of Appeal (Sir George Jessell MR, Baggallay and Thesiger LJJ) held that he should have dismissed it. The case was not one of fraud nor of fresh evidence but it is noteworthy that Sir George Jessell at p 97 expressed in strong terms the view that the old jurisdiction of Chancery judges to order a rehearing was vested by the Supreme Court of Judicature Act 1873 not in the High Court but in the Court of Appeal".

Russell LJ, after referring to Flower v Lloyd, Falcke v Scottish Imperial Insurance Company, Boswell v Coaks, In re Scott and Alvarez's Contract and Charles Bright and Company Limited v Sellar, said (at 26 to 27):

"In none of the cases brought to our notice has an action to set aside a judgment on the ground of fresh evidence succeeded. Indeed there is nothing to show that in the last 100 years any such action has even been brought though in Falke's Case 57 LT 39 in 1887 there was an unsuccessful attempt to bring one. Insofar as any of the dicta tend to show that an action will lie they are obiter. The reason which Sir George Jessell MR gave in In re St Nazaire Company 12 ChD 88 for the view that the jurisdiction to order a rehearing was vested by the Judicature Act in the Court of Appeal and not in the High Court is of equal weight in relation to fresh evidence as to the type of case with which he was dealing. Even if, technically, the High Court was at first clothed of this jurisdiction we are of opinion that this cause of action has long since lapsed because applications for rehearing on the ground of fresh evidence have for generations been made only to the Court of Appeal".

274 In re Barrell Enterprises has not been disturbed in England and remains the law in that country. Nothing said in Taylor v Lawrence detracts from the above quoted remarks of Russell LJ in that case. In Taylor v Lawrence the Court of Appeal was concerned only with whether it could reopen an appeal once its own judgment had been given and perfected. It did not deal with whether a single judge of the High Court had jurisdiction to entertain an action, based on fresh evidence, to set aside a judgment duly entered. The judgment of Lord Woolf CJ who gave the judgment of the Court, assumes that In re Barrell Enterprises remains the law in this respect.

The Australian cases

275 Hosking v Terry (1862) 15 Moore 493 at 504[1862] EngR 903; ; 15 ER 581 at 585 appears to have been the last reported case in New South Wales where the bill of review procedure was recognised.

276 In Ivanhoe Gold Corporation Limited v Symonds [1906] HCA 71; (1906) 4 CLR 642 Higgins J (at 670) quoted with approval the remarks of Romer J in Ainsworth v Wilding (at 676 to 677) to the effect that the former power of the Court of Chancery to rehear cases after the decree had been entered had not survived the Judicature Acts.

277 In Ronald v Harper [1913] VLR 311 Cussen J, obiter, made remarks (at 318) indicative of a view that, "[u]nder the old practice" a judgment might be set aside, applying the same considerations "as formerly was the case on an application for leave to bring a bill of review". This, for the plaintiff, is the high-water mark of post-Judicature Act Australian authority.

278 In Victorian Stevedoring and General Contracting Company Pty Limited v Dignan [1931] HCA 34; (1931) 46 CLR 73 Dixon J (at 108-109) referred to the creation of the Court of Appeal by the Judicature Act and said:

"When `the Courts which were manifold' were united `in divers divisions of one,' and the judgments of the one Court were made subject to the same review whether the obligations they enforced were legal or equitable, the jurisdiction and the power of the new Court of Appeal were conferred upon it in terms derived from Chancery. The provisions by which its functions were defined and described could scarcely be mistaken. The remedy they gave to the unsuccessful litigant was a rehearing of his cause of the kind illustrated by the cases since decided".

These remarks echo the views of Sir George Jessel, earlier set out.

279 As I have noted, in Gamser v The Nominal Defendant Aickin J (at 153 to 154) accepted that under the New South Wales Supreme Court Act this Court has powers to receive new evidence only during the currency of an appeal or, in respect of its inherent jurisdiction, when a judgment is sought to be impeached upon the ground of fraud.

280 In Monroe Schneider Associates (Inc) v No 1 Raberem Pty Limited the Full Court of the Federal Court (Spender, Gummow and Lee JJ) discussed (at 239-240) the equitable jurisdiction grounded on the Chancery bill of review procedure but left open the question whether the action to set aside a judgment on the ground of new matter continues to survive.

281 In DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 244 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said (at 244):

"The Court of Chancery had power to re-open and rehear cases which had been tried before it, even after the decree had been entered. A right of rehearing in the Court of Chancery had involved the exercise of appellate rather than original jurisdiction. Sir George Jessel MR so concluded In re St Nazaire Company. However that peculiar state of affairs in Chancery did not continue with respect to the exercise of equitable jurisdiction by the Supreme Court of Judicature established by the Judicature Act 1873 (UK). The structure it provided included the Court of Appeal."

While these remarks indicate that their Honours were in agreement with what Jessel MR had said in In re St Nazaire Company, they went on to observe (at 245) that it was "unsettled" whether the jurisdiction of Court of Chancery "might have been invoked to set aside judgments [of the superior courts of common law] by reason of the availability of `fresh evidence'" and stated that "[t]he equity jurisdiction remains in Australia, at least with respect to the impeachment of judgments for fraud" (my emphasis).

Mr Gageler submitted that, in context, the use of the phrase "at least" indicates that their Honours were leaving open the possibility that the jurisdiction to set aside judgments on the ground fresh evidence remained. Mr Slattery accepted that what was said by the High Court in DJL v The Central Authority did not finally resolve the issue.

282 The following points can be made about the Australian authorities on the issue raised by the plaintiff. Firstly, it is highly significant that the last reported case involving the bill of review procedure was Hosking v Terry, a case heard more than 140 years ago. This seems to be a very strong indication that the jurisdiction does not exist. Secondly, the remarks made by Dixon J in Victorian Stevedoring and General Contracting Company Pty Limited v Dignan were to the effect that the Courts established by the Judicature Act acquired all the jurisdiction previously exercised by the Court of Chancery (including the bill of review procedure). The same may be said of the remarks by Higgins J in Ivanhoe Gold Corporation Limited v Symonds, Aickin J in Gamser v The Nominal Defendant and Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226.

283 Generally, apart from the old case of Ronald v Harper, there is no comfort for the plaintiff from the Australian authorities. They generally reflect a view that, by the Judicature Act, the jurisdiction previously exercised by the High Court of Chancery and the Court of Appeal in Chancery was transferred to the High Court and Court of Appeal established by the Act.

Original and appellate jurisdiction

284 I turn to the proposition that the bill of review procedure involved the exercise of original jurisdiction and, as the jurisdiction given to the Court of Appeal by the Judicature Act was appellate only, the Court of Appeal did not acquire the bill of review jurisdiction (which continues to be vested in a single judge of the Supreme Court of New South Wales).

285 In Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 Mason CJ (at 271) accepted that in allowing new evidence to be led on appeal, an appellate court would be exercising original jurisdiction. Toohey and Gaudron JJ (at 298) said:

"Proceedings before an appellate court involving a determination by reference to evidence called for the first time in that court are commonly referred to as appeals. However, the function which is then embarked upon is discernibly different from the ordinary appellate function of determining whether or not the court appealed from ought to have arrived at the decision in question. It involves the appellate court itself reaching a decision on material which is, to the extent of fresh evidence adduced, different from that considered by the lower court and, if that decision is different from the earlier decision, substituting that decision for the earlier decision. That function, involving the making of an independent and original decision, is properly to be characterised as the exercise of original jurisdiction".

286 In CDJ v VAJ (1998) 197 CLR 172 McHugh, Gummow and Callinan JJ at 201 to 202 said:

"No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original".

287 In Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 Gleeson CJ said (at 11):

"Appeals are creatures of statute. It is not uncommon for intermediate appellate courts in Australia, including courts of Criminal Appeal, to have conferred upon them, by statute, power to receive an act upon evidence which was not before the court at first instance. When such a power is exercised, what is involved is an exercise of original rather than strictly appellate jurisdiction. The relevant statute ordinarily defines the conditions and limits of the exercise of the power".

See also Gaudron J at 24 to 26. McHugh J (at 33) said:

"There does not appear to be any case where a court has held that the simple grant of appellate jurisdiction carries with it the right to admit further evidence in hearing the appeal. Furthermore, where a court is given jurisdiction to hear `appeals' but with power to rehear the matter or to take new evidence, it is not exercising appellate jurisdiction in its true sense. In such cases, as Jessel MR pointed out in Quilter v Mapleson (1882) 9 QBD 672 at 675 to 676, the jurisdiction exercised by the appellate court is an amalgam of appellate and original jurisdiction.

Most appellate courts today are given a statutory power to receive further evidence on appeal. In some cases, if the appeal is by way of rehearing, it may be possible to infer an implied power to receive further evidence. When such a power is conferred, expressly or inferentially, the `appellate' court decides the case on all the facts as it finds them to exist as at the date of hearing. But the court is not exercising appellate jurisdiction in its true sense".

288 These authorities indicate that, when an appellate court allows new evidence to be led in the course of an appeal by way of rehearing, it is exercising original jurisdiction, or an amalgam of original or appellate jurisdiction, or a jurisdiction that is neither purely appellate nor purely original. Accordingly, the fact that the bill of review procedure may have involved the exercise of original jurisdiction did not preclude the transfer, by the relevant legislation, of that jurisdiction to an appellate court having jurisdiction to hear appeals by way of rehearing.

289 In any event, in DJL v Central Authority at 244 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ appear to have accepted (at 244) Jessel MR's view In re St Nazaire Company that a right of rehearing in the Court of Chancery involved the exercise of appellate rather than original jurisdiction.

290 In the circumstances, I do not accept Mr Gageler's argument that the bill of review jurisdiction was original in nature and, therefore, it was not transferred by the relevant legislation to this Court.

The appellate jurisdiction to reverse a judgment on the ground of fresh evidence

291 Cases such as Orr v Holmes, McCann v Parsons and McDonald v McDonald afford the plaintiff no support. They simply illustrate the principle that, prior to the entry of its own judgment, and as part of its ordinary powers, an intermediate appellate court has jurisdiction to make orders based on fresh evidence weighed against the evidence led at the trial. Such orders may involve reversing or altering orders made at first instance.

Conclusion

292 I do not accept the arguments made on behalf of the plaintiff.

293 The Judicature Act abolished the old bill of review procedure and replaced it with appeals to the Court of Appeal. The New South Wales successors to that legislation abolished the bill of review procedure and replaced it with appeals to the Full Court (to whose jurisdiction, this Court has succeeded).

294 The continued existence of an action before a single judge of the Supreme Court of New South Wales to set aside a duly entered judgment on the grounds of fraud lends no support to the argument that there is like jurisdiction to set aside an entered judgment on the grounds of fresh evidence not amounting to fraud.

295 Even if the bill of review jurisdiction was original in nature, that does not assist the plaintiff. In any event, there is persuasive (if not binding) authority that it was in part appellate.

296 None of the other matters argued assist the plaintiff.

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LAST UPDATED: 21/06/2002