Roni v Ross Mining (Solomon Islands) Ltd [1998] SBHC 144; HCSI-CC 60 of 1997 (1 April 1998)

CC 60 97 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.: 60 of 1997

WILLIE RONI & DAVID THUGUVODA

-V-

ROSS MINING (SOLOMON ISLANDS) LIMITED, GOLD RIDGE MINING LIMITED AND OTHERS

High Court of Solomon Islands
(Palmer J)

Civil Case No.: 60 of 1997

Hearing: 10 March, 1998
Judgment: 1st April, 1998

J. Griffiths and A. Radclyffe for the First and Second Respondents
G. Nash and C. Ashley for the Applicants
D. Mcquire for the Fourth Respondents
B. Titiulu for the Third Respondents

PALMER J.: By leave of Court dated 3rd and 6th October, 1997, the First and Second Applicants wholly discontinued their actions against the Respondents pursuant to Order 28 Rule 1 of the High Court (Civil Procedure) Rules, 1964.

In a summons filed on 4th December, 1997, the Applicants sought to have those orders set aside on numerous grounds, including fraud. The First and Second Respondents (“the Respondents”) do not agree and have come to this Court by summons filed on 6th February, 1998 seeking orders to have that summons dismissed or permanently stayed on the basis that the summons is frivolous and or vexatious and or an abuse of process of the Court.

Both parties have agreed that the Court should deal with the second summons first on the basis that it deals with a jurisdictional question whether this court can entertain the summons of the Applicants.

The jurisdictional issue turns simply on the meaning and effect of the orders of this Court to discontinue proceedings obtained by leave of Court pursuant to Order 28 Rule 1 of the High Court (Civil Procedure) Rules. The First and Second Respondents submit that the effect was to bring the action to an end and that any subsequent application filed to have the order set aside or to have the cause of action litigated should be by way of new and separate proceedings. The Applicants on the other hand submit that on the grounds relied on in their summons, including undue influence, duress and fraud, this Court has jurisdiction to deal with their application to set aside the Orders of Discontinuance obtained on 3rd and 6th October 1997.

Order 28 Rule 1 deals with the subject of “Discontinuance”.

“The plaintiff may, at any time before receipt of the defendant’s defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this Rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court, but the Court may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. The Court may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave.”

Order 28 Rule 1 provides for partial discontinuance or discontinuance in full. In this case, the actions were wholly discontinued by both Applicants. What does this mean?

The Oxford Advanced Learners Dictionary defines the word “discontinue” as “(cause something to) come to an end; stop (doing something): ....”; “discontinuance” as “ending the availability, production, etc of something”.

The Osborn’s Concise Law Dictionary defines “discontinuance” in a more specific way as:

“Where the plaintiff in an action voluntarily puts an end to it.”

Note the emphasis in both definitions; that of bringing something to an end or a stop. This prompts the question, if an action is put to an end, can it be revived by an application to set it aside? The simple answer with respect to this simple question, is that if an application has been brought to an end, then there is nothing further to agitate over. The matter has come to an end, and the Court’s jurisdiction in respect of that matter should also come to an end. An application therefore to set aside such discontinuance with respect has been misconceived.

The definition in Black’s Law Dictionary, sixth edition, is also consistent with such view:

“The cessation of the proceedings in an action where the plaintiff voluntarily puts an end to it, either by giving notice in writing to the defendant before any step has been taken in the action subsequent to the answer, or at any other time by order of the court or a judge. A non-suit; dismissal.”

The word “cessation” comes from the word “cease”. The word “cease” in turn means inter alia, to stop, bring to an end or to come to an end. It will be noted in the definition above that the word “discontinuance” is also used akin to a ‘dismissal’.

In “Rules Of The Supreme Court” Order 26 Rule 1, under the sub-heading ‘Effect of Discontinuance and Withdrawal’ the commentary reads:

“ Discontinuance by the plaintiff without leave in accordance with the Rule does not bar his claim, but he must pay the costs of the defendant ..... He may commence a new action for the same cause (The Kronprinz, 12 App. Cas. 256, ....) to which such discontinuance will be no defence, r. 1; but unless he does so in good time his laches may be a bar (Reid v. London & N. Staffs. Insce. Co., 49 L.T. 468). The new action need not refer to the discontinued action, nor should it be claimed that it be treated as supplemental thereto (United Telephone Co. v. Tasker, 59 L. T. 852). But when the plaintiff has to obtain leave, it is only by the discretion of the Judge that he can discontinue with the right of bringing another action (Fox v. Star, etc., Co., [1890]1 Q.B. 636; [19001] A. C. 19.” (Emphasis added).

The emphasis added demonstrates very clearly in my respectful view that the intention of a discontinuance is to bring an action to an end or to a close. That is why it is provided that when a plaintiff has to obtain leave, it is only by the discretion of the Judge that he can discontinue with the right of bringing another action.

Numerous case authorities have been referred to in support by learned Counsel for the First and Second Respondents and so to these I will now turn.

The first is Cooper v. Williams [1963] 2 QB 567 at 580 per Lord Denning MR:

“In the Annual Practice, 1963, p 3182, it says, under the heading “Effect of a Stay of Proceedings”: “Two views may be taken: first, that it is a discontinuance, and therefore cannot be removed; secondly, that it is not equivalent to a discontinuance, but may be removed if proper grounds shown.” The point was left open in the case to which we were referred, Bean v. Flower. Of the two views I am of the opinion that the effect of a stay is that it is not equivalent to a discontinuance, or to a judgment for the plaintiff or the defendants. It is a stay which can be and may be removed if proper grounds are shown.”

The emphasis sought to be placed on the above comments by his Lordship Denning MR was that indirectly he was saying that an order of discontinuance cannot be removed once in place; not even if proper grounds were shown.

The next case cited is Rofa sport Management AG and Another v. DHL International (UK) Ltd. and Another [1989] 1 WLR 902 at 907 per observations of Neill LJ:

“It was not in dispute that, if the action had been dismissed by consent and the order had been drawn up, the court would have had no jurisdiction thereafter to make any order ... Once an action has been dismissed then, subject to any rights of appeal, or in certain circumstances, the right to bring a fresh action, it is at an end.

It was also not in dispute that if the action had been discontinued by an order ... and the order had been drawn up the· action would have been at an end and no order could be made thereafter.”

His Lordships observations above were made in the context of a stay of proceedings. In so doing, a comparison was made as to the effect of a dismissal by consent and an order of discontinuance. The clear view indicated in that judgment was that a stay of proceedings was not equivalent to a dismissal or discontinuance, and that thereby the court had jurisdiction in that case to add a party to the action so stayed. The implication to be drawn from this is that a discontinuance unlike a stay, brings an action to an end and is more akin to a dismissal.

Similar views were expressed in Selig v. Lion [1891] UKLawRpKQB 11; [1891] QB 513 at 515 per judgment of Wills J.:

“Two views may be taken of the nature of the stay; first, that it is a discontinuance, in which case cadit quaestio; and secondly, that it is not equivalent to a discontinuance, but may be removed if proper grounds are shewn.”

The view taken by Wills J., of a discontinuance is very clear; that it ends all argument (cadit quaestio). There is nothing further to argue about or room for further argument.

The views expressed in Halsbury’s Laws of England, 4th Edition, at paragraph 556 are also consistent with that view that an order of discontinuance brings a case to an end.

“As a general rule, except by way of appeal, no court, judge or master has power to rehear, review, alter or vary any judgment or order after it has been entered either in an application made in the original action or matter or in a fresh action brought to review the judgment or order. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions.”

A number of exceptions were referred to but none of the grounds listed in the Applicants summons came within those exceptions.

The learned Authors continued:

“The court has no power to amend or set aside its judgment or order where it has come to an erroneous decision of fact or law, or where new material evidence has come to light, or if it transpires that the judgment or order had been obtained by fraud or false evidence: in such cases relief must be sought by way of appeal or, where appropriate, by separate action to set aside the judgment or order.”

The only recourse open to the Applicants in this case therefore where they wish to challenge the validity of the order of discontinuance is to commence fresh proceedings.

The fourth case relied on by the First and Second Respondents is on all fours with this case. This is the case of Carlton International PLC and Bradmans Stores Pty Ltd v. Crayford Freight Services Ltd, (unreported decision of the Federal Court of Australia) judgment delivered 8th September 1997. Tamberlin J held at page 5:

“In the present case, however, the position is that there is presently no proceeding on foot in respect of which an extension of time can be granted. The purported cross claim filed with the Court on 22nd July 1997 was filed without leave and therefore had no legal effect. Subsequent discontinuance of the proceedings on 13th August 1997 meant that thereafter there were no proceedings on foot in respect of which a cross claim could be filed. Therefore, there is nothing in respect of which an application for an extension of time to 22nd July 1997 can be anchored or grounded in the present circumstances. The effect of this is that any application, at this time, for an extension of time to file the cross claim must be dismissed. The Court has no Jurisdiction to entertain the cross claim which has been filed.”

The same can be said of this application. There is simply no proceedings on foot in respect of which an application to set aside could be filed or entertained. There is nothing to anchor or ground such application and the only appropriate order in the circumstances must be a dismissal.

The other cases referred to relate to cases where fraud is alleged. The position nevertheless is not affected; that even in such situations any application to set aside an order of discontinuance must be done through separate proceedings. The first case relied on is Flower v. Lloyd [1877] UKLawRpCh 173; (1877) 6 Ch D 297. The question which the Court had to decide was whether, final judgment having been pronounced by the Court dismissing the action with costs, the Plaintiff was entitled to apply for leave for a rehearing of the appeal on the ground of fraud. It was held that if there were no other remedy available, then the application would have been accepted. James L.J summed up the views of the Court as follows:

“I agree with what has been said by the Master of Rolls, that in the case of a decree (or Judgment as we call it now) being obtained by fraud there always was power, and there still is power, in the Courts of Law in this country to give adequate relief. 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.”

The same can be said in respect of this case. The Applicants are not deprived of their right to commence fresh proceedings to have the order of discontinuance set aside on the grounds of fraud etc., and it would seem only proper that a fresh action must be brought in the circumstances of this case.

The case of Ainsworth v. Wilding [1896] UKLawRpCh 42; [1896] 1 Ch 673 is also on point. See also Jonesco v. Beard [1930] AC 298 at 300; paragraphs 560 and 562 of Halsbury’s Laws of England, Fourth Edition. The statement in paragraph 562 is relevant:

“Unless all the parties agree, a consent order, when entered, can only be set aside by a fresh action, and an application cannot be made to the court of first instance in the original action to set aside the judgment or order, except, apparently, in the case of an interlocutory order. Nor can it be set aside by way of appeal.”

This falls directly in line with the submissions of the Respondents. The parties (that is the Respondents) in this case do not agree that the consent order should be set aside. Secondly, the order issued is not an interlocutory order but a final order of discontinuance. It can only be set aside therefore by way of a fresh action.

The next case referred to however, a House of Lords decision, appears to indicate that a notice of discontinuance without leave can be set aside if it amounted to an abuse of process (Castanho v. Brown & Root (U.K.) Ltd and Another [1981] A.C. 557 at 571). The relevant part in the judgment of Lord Scarman read:

“Even if it be illogical (and I do not think it is) to treat the termination of legal process as an act which can be an abuse of that process, principle requires that the illogicality be overridden, if justice requires. The court has inherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to retain: and termination of process can, like any other step in the process, be so used. I agree, therefore, with Parker J. and Lord Denning M.R. that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of the process of the court.”

The facts in that case briefly involved a claim of damages for injury instituted by the Plaintiff, a Portuguese subject, working in an American ship while lying in an English Port. On Marsh 22, 1978, a consent order was made under R.S.C. Ord. 29 r. 9 for interim payments totalling some £27,250. Sometime during that year he was contacted by a firm of Texan attorneys who sought to persuade him to bring proceedings in Texas where higher damages could be obtained. On May 14, 1979, his Counsel in England served a notice of discontinuance on the defendants. In July 1979 a fresh action was commenced in a United States federal court in Texas. The defendants naturally sought to have the notice of discontinuance struck out as being an abuse of process and sought restraining orders against the plaintiff from commencing or continuing proceedings in the United States. Parker J. granted the application and struck out the notice of discontinuance as well as imposing an injunction against the plaintiffs. The matter went on appeal to the Court of Appeal who set aside the order striking out the notice of discontinuance and discharged the injunction. Before the House of Lords, the appeal was dismissed. The House of Lords however accepted that the notice of discontinuance was rightly set aside by Parker J. as an abuse of process in that the court would not have allowed the plaintiff who had secured interim payments and an admission of liability by suing in England to retain those advantages without being put on terms. The House of Lords directed that leave to discontinue should be given on terms.

The above case seems to support the Applicants view, that the court of first instance does have jurisdiction to set aside a consent order which amounts to an abuse of process.

The following distinguishing factors however should be noted. First, the application to set aside the notice of discontinuance in the above case was made by the Defendants on the ground that it would be unjust for the Plaintiff to retain a collateral advantage obtained through the process of discontinuance. In the facts of this case, not only had leave been obtained from the Court, but the application to set aside was made by the Applicants themselves, not the Respondents (this in my respectful view is important to bear in mind). Note, in Castanho’s Case, the notice of discontinuance had been made by the plaintiff but sought to be set aside by the defendant. In this case, the notice of discontinuance (the relevant process alleged to have been abused in this application) was not procured by the Respondents for a collateral advantage. There are allegations of impropriety against the Respondents, but these are not conceded by them. The Respondents had given notice that these would be strenously contested. In contrast, compare with Castanho’s Case, where it was fairly clear and appears not to have been denied, that the process of discontinuance was being used by the plaintiff for a collateral advantage. To that extent it was simply a question of determining there and then whether the actions of the plaintiff amounted to an abuse of process. Not so in this case, where the issues raised would be more properly dealt with by way of separate pleadings.

It is also important to appreciate that in Castanho’s Case, the defendant was not only seeking to have the notice of discontinuance set aside but was seeking an injunction as well. In this case, the Applicants will not suffer any prejudice or injustice if the matter was to be commenced by fresh proceedings as a rule of thumb. None in any event has been shown that would justify re-activating this action for that purpose. For those reasons, I am satisfied Castanho’s Case is distinguishable from this case.

I will now turn briefly to deal with the submissions of the Applicants. A number of propositions were advanced by Mr. Nash, learned Counsel for the Applicants. The first one is that a superior court of record has inherent jurisdiction to set aside an order which is obtained by fraud or by abuse of the process of the Court. Apart from Castanho’s Case, the first case relied on is Mason v. Ryan (1884) V.L.R.335.

In that case, the court had proceeded to hear an action of ejectment by a judge and jury which had no jurisdiction in law although the hearing was not objected by the Defendant. The Defendant then moved to have the verdict set aside on the ground inter alia, that there was no power in the judge to order a trial by jury. The plaintiff on the other hand sought to argue that the judge had no power to set aside the verdict without granting a new trial. The Court thought otherwise:

“But I think that the Court, although (having a limited jurisdiction only) it has no jurisdiction beyond what the Legislature has given it, ... still has an inherent power to prevent the abuse of and to correct irregularities in and frauds upon its own procedure and rules, and for that purpose to set aside proceedings which it may find to be void or irregular.”

Mason v. Ryan in my respectful view can be easily distinguished on the grounds that because the trial before a judge and jury was a nullity, no judgment had been effectively entered by the Court and that therefore the court would not in any event have the jurisdiction to grant a new trial. The matter was still on foot and the Judge had jurisdiction to set the verdict aside without granting a new trial. The fact that both the plaintiff and defendant had consented to the trial by judge and jury did not make one iota of a difference to the jurisdiction of the court. It simply did not have jurisdiction and therefore the matter had not been finally determined as between the parties.

Not so in this case, where it is clear leave had been obtained for the notice of discontinuance to be issued. It was not the case that this court had no jurisdiction to grant leave. It most certainly did have.

The next case relied on was Thiessen v. Fielding [1890] V.L.R 666. In that case, the court had struck out the case against the defendant on the basis of an alleged defect in service. It transpired that the court had made a mistake in issuing an order based on that defect. The debtor’s summons had in fact been effectively served. The court accordingly re-instated the case the same day. One of the grounds raised was that the court having struck out the case had no jurisdiction to re-instate it without notice to the defendants. On appeal, the court held that the circumstances of that case warranted the intervention of the court to have the matter re-instated; otherwise injustice would have resulted against the plaintiff.

That with respect is distinguishable from this case in that it is not the Respondents who are asking to have the order set aside but the Applicants themselves (alleging that they should not have entered a notice of discontinuance in the first place). The court here has not been misled, neither mistaken. The Applicants purposely and deliberately obtained leave of the Court to enter a notice of discontinuance. It was only after this has been done, that they now come asking to have that order set aside. The matters raised are matters which would yet have to be agitated upon and in my respectful view that can only be done by way of a fresh action. I fail to see how any injustice would result against the Applicants themselves if the matter was to be commenced afresh.

In Jennings and Wife v. The London General Omnibus Company (No.2) The Law Times vol. XXX; N.S. 640, the issue before the Court of Exchequer was whether the County Court had power to set aside an earlier order terminating the proceedings for non-attendance by the plaintiff. The Court held that:

“......one would think that it was almost incidental to the jurisdiction of any court, unless it were expressly taken away by statute, that the court, in its natural and ordinary control over its own proceedings, if by any misadventure the cause had not been heard, either by the plaintiff not appearing, or from any misfortune or for any good reason, would have the power - and certainly this particular court has the power - to order the cause to be re-entered.”

Above case is again distinguishable on the ground that the Applicant’s case was not terminated on grounds of misfortune or non-attendance by the Applicants but by notice of discontinuance obtained by leave. The cause therefore, whatever it was, had come to an end. Not so in the above case, in that while the cause was yet to be determined, it was terminated through non-attendance of the plaintiff. It wasn’t the case where the plaintiff had consented to the order of termination for non-attendance. There may be equally very good reasons why plaintiff had not attended court that day and so it would be unjust for the court not to give opportunity for an application to set aside to be considered. A termination through non-attendance however, is not the same or does not have the same effect as a notice of discontinuance obtained through leave. A notice of discontinuance filed and issued by the court effectively means that the case is at an end. The plaintiff having carefully thought through his case had decided that he no longer wishes to pursue his claim against the defendant and accordingly by law seeks the court’s leave to discontinue. Effectively this means that if he wishes to re-instate his case, then he must commence fresh proceedings even for the same cause of action. It is important in my respectful view that the law on this is certain, so that plaintiffs are fully appraised of their rights and the legal consequences of their decisions. An order of discontinuance must be likened to a final order. Having said that, it should be borne in mind that cases may arise in which the above general statements of principle may not apply.

The next case relied on by the Applicants, the case of Williams v. Preston [1881] CA. 672, can be distinguished on the grounds that the issues pertaining to jurisdiction to set aside judgment obtained by fraud were raised on appeal to the Court of Appeal and not before the same court which gave judgment. The Court of Appeal held that it had jurisdiction to set aside judgment, permit the client to withdraw the defence and put in a fresh defence and to rehear the case.

Some mention was made of Order 26 Rule 1 of the Rules of the Supreme Court on discontinuance. With respect however, the commentary by the learned Authors do not favour the Applicants. At page 594 referring to discontinuance by leave the commentary reads:

“But when the plaintiff has to obtain leave, it is only by the discretion of the Judge that he can discontinue with the right of bringing another action.”

By implication, an order of discontinuance signals the end of the case, and unless there is a condition attached to the order forbidding the plaintiff from bringing another action, he may commence a new action for the same cause.

The case of The Ardanhu (1886) Vol. XI Probate Division 40, relied on by the Applicants can also be distinguished. The facts of this case involved the collision of two vessels; the Kronprinz and the Ardanhu. The owners of the Kronprinz (the plaintiffs) brought an action against the Ardanhu (the defendants) for damages by collision. Subsequently, an agreement was reached between the parties for the discontinuance of the case without costs on the ground of inevitable accident. The owners of the cargo on the Kronprinz then brought an action against the Ardanhu. This was tried and the Court found that both vessels were to be blamed. The owners of the Kronprinz then applied to have the order of discontinuance earlier entered into rescinded by the Court. This was consented to by the defendants and the Butt J. granted the order.

The owners of the cargo on the Kronprinz contested the actions of Butt J. arguing that having discontinued their actions the owners of the Kronprinz had debarred themselves from recovering against the Ardanhu and that thereby Butt J. had no jurisdiction to set aside that order. The Court of Appeal held that the discontinuance could be set aside.

This case can be easily distinguished in my view on the grounds that the order of discontinuance was set aside by Butt J. by consent of the defendants. Not so in this case. The Respondents do not consent to and have indicated that they will strenously oppose any applications to set aside.

Another case relied on was The Bellcairn (1885) Vol. X, Probate Division 161. The facts in that case were very similar to The Ardanhu (ibid). The only difference being that instead of an order for discontinuance, the parties agreed by decree that the claim and counter-claim be dismissed without costs and that judgment be formally entered. Subsequently, the parties obtained a consent order from the Assistant Registrar setting aside that decree. On appeal, the Court held that a judgment by consent cannot be set aside by a subsequent agreement between the solicitors or the parties and taken to a registrar or master to endorse. The Court said at page 165:

“It is only the Court, with full knowledge of the facts on which it is called on to act, which can set aside the first judgment, and I doubt whether, unless some fraud in regard to such judgment is shewn, even the Court would have jurisdiction to set aside its first judgment.”

Mr. Nash seeks to distinguish between a final judgment as opposed to a notice of discontinuance, that in the former, the Court would not have jurisdiction to set aside its first judgment, but not in the latter. Bearing in mind the similarities in the actions in The Bellcairn (ibid) and The Ardanhu (ibid), I fail to see how the final order obtained in The Bellcairn should be considered differently from the notice of discontinuance issued in The Ardanhu. The effect is essentially the same (see the judgment of Lord Coleridge C.J. in The Ardanhu at pages 45 and 46).

The final case relied on in support of the first proposition is Ivanhoe Gold Corporation Ltd v. Symonds (1906) 4 C.L.R. That was a case of final judgment. In the judgment of Higgins J. he states:

“I can find no instance, after searching Daniell’s Chancery Practice, and the Annual Practice of 1906, of any case which goes so far as to allow a final judgment duly passed and entered, or otherwise completed, to be corrected as proposed by this motion. The judgment was given deliberately; the written judgment duly expressed what the Judge meant to pronounce; the new order proposed to be added does not deal with items of costs or the computation of interest, or matters purely incidental to and within the scope of the judgment, as in Fritz v. Hobson and other such cases; and McMillan J. himself, even if he had been asked to alter his judgment on the ground of error, would have had, in my opinion, no jurisdiction to do so.”

Whilst the above referred specifically to a final judgment, the comments made by Higgins J. are also relevant to the case of a discontinuance. An order of discontinuance obtained by leave of the Court, in my respectful view, must mean that that was what was intended to be achieved by the plaintiff. It is a deliberate application seeking the Court’s leave to have his case discontinued (terminated, ended) because he does not wish, no longer intends, to pursue the case any further. When the order therefore is made, it is akin in my respectful view, to a final judgment. The Judge or Court, having considered the application, and on entering leave to discontinue is thereby deliberately and purposely saying that the case is at an end, and that if the plaintiff should for any reason decide to recant, then the only recourse is by way of a fresh action. In my respectful view, for purposes of certainty and finality, this position must be preserved and maintained.

This brings me to the third proposition submitted by the Applicants, the second having been dealt with in the analysis of the cases referred to by Mr. Nash: that a compromise reached as a result of undue influence or fraud including equitable fraud, will not be enforced by the court.

The first case relied on for this proposition is the case of Emily Joan Harvey v. Coralie Ngarita Phillips and Another [1956] HCA 27; [1956] 95 C.L.R 235. That case involved a compromise reached between counsel for the parties in which the plaintiff accepted a settlement of her claim for £4,000. Subsequently, the plaintiff sought to have the judgment set aside on the ground that she had never given her consent.

The first important distinction to be noted about that case was that the plaintiff had applied to have the compromise entered into set aside on appeal to the Full Court (Supreme Court of New South Wales) and not before the same court in which the settlement had been entered into.

Secondly, the Court pointed out a clear distinction between cases in which judgment or the consent order had been perfected and those which had not. At page 242, (ibid) the High Court of Australia stated:

“Had judgment been signed it may be doubted whether it was open to the plaintiff to attack it by making an application to the Full Court in the action to set aside the judgment and compromise.”

Also at page 243, this theme was repeated:

“In such a case, at all events until the judgment or order embodying the compromise has been perfected, an authority exists in the court to refuse to give effect to or act upon the compromise and perhaps to set it aside.”

The Court however went on to say (same page towards bottom):

“The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.”

The implication to be drawn from this statement is that dispute the perfection of a judgment or an order, there may be grounds under which the court would have jurisdiction to set aside judgment or the consent order. Whilst I agree that this is clear from that judgment (see also the judgment in Tresize and Others v. National Australia Bank Ltd 122 ALR 185), the Court did not state whether this was to be by way of fresh hearing before the same court or in the same action. Herein is the crucial distinction in those cases to this case. It is not disputed and not contended (correctly in my view), that the Applicants in this case do have the right to apply to this court to have the order of discontinuance set aside. However, this must be by way of fresh proceedings.

The case of Logwon Pty Ltd v. Warringah Shire Council 33 NSWLR 13 relied on by the Applicants in support of their submissions is directly on point but contrary to the Applicant’s submissions. At page 28 paragraph (E), Sheller JA outlines the general principle of law that apply in respect of a court’s power to review or alter its judgment or order:

“A superior court has power to review, correct or alter its judgment at any time until its order is perfected: .....”( see Texas Co (Australasia) Ltd v. Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382 at 457.)

At paragraphs (F)-(G) he outlines the general rule in respect of a judgment perfected but which may be impeached on certain grounds:

“By contrast, as a general rule, a perfected judgment cannot be recalled or varied: ... However a judgment even though perfected may be impeached on grounds of fraud and there is an inherent jurisdiction to alter an order where its form as entered or filed does not express or clearly express the intention of the court or where having been made ex parte, procedural fairness demands it:”

Shellers JA then went on to quote with approval, Brennan J. in Permanent Trustee Co (Canberra) Ltd (As Executor of Estate of Andrews) v. Stocks and Holdings (Canberra) Pty Ltd (at 48):

“When the litigant has a right to set aside the judgment on the ground of fraud, however the fraud must be alleged in a fresh action brought to try the issue (Flower v. Lloyd [1877] UKLawRpCh 173; (1877) 6 Ch D 297; Jonesco v. Beard [1930] AC 301). Similarly, where the judgment is entered by consent, and a party alleges that the agreement pursuant to which the judgment was entered is void or voidable (Harvey v. Phillips [1956] HCA 27; (1956) 95 CLR 235; Huddersfield Banking Co v. Henry Lister and Sons Ltd [1895] UKLawRpCh 64; [1895] 2 Ch 273; the issue must ordinarily be litigated in a fresh action ....”

This was the position taken by the Respondents in this case.

At page 30 (ibid) of his judgment however, Sheller JA went on to state:

“In my opinion Bignold J had jurisdiction to entertain the appellant’s application to set aside the consent orders. Procedurally the application should not strictly, I think, have been by way of separate Class 4 proceedings but rather by way of application made in the proceedings in which the orders were made. I am conscious of what the courts have said about the desirability of commencing fresh proceedings to set aside consent orders: Spies v. Commonwealth Bank of Australia. However in that case (at 699) this Court referred to Hip Foong Hong v. H Neotia and Co [1918] UKPC 65; [1918] AC 888 at 894 which demonstrates that the commencement of separate proceedings is a procedure of convenience. I do not think this procedural question is significant in the present appeal.”

Mr. Nash argues that the above statement ultimately supports his clients application that the commencement of separate proceedings is one of convenience only and that this Court has jurisdiction to deal with the summons to set aside. Whilst that may be so in that case where the ground relied on was based on mistake, in my respectful view, the same cannot be said in this case. Not only do we have an order for discontinuance, but the grounds relied on were more substantial and significant.

In this case, it is not only a matter of convenience, but in view of the grounds raised seeking to challenge the validity of that notice of discontinuance, including allegations of fraud, duress and undue influence, it is only proper that the matter must be commenced by fresh proceedings. Note in Logwon’s Case (ibid), the learned Judge was of the view that the procedural question was not significant. By implication, if it had been significant, then, the learned Judge presumably would have required that fresh proceedings be commenced in order to have the said consent orders set aside.

I am satisfied, the Summons of the First and Second Applicants filed on 4th December 1997 be dismissed as against the First and Second Respondents on the basis that it is an abuse of process of the Court, in that the proceedings in Civil Case number 60 of 1997 having been discontinued, any attempt to litigate the cause of action the subject of these proceedings and any application to have those Orders set aside should be by way of commencement of new and separate proceedings. This Court does not have jurisdiction to entertain that Summon, and even if it does, I am not satisfied that this would be the right and convenient procedure to adopt. The procedural question in this case is not insignificant.

ORDERS OF THE COURT:

1. Dismiss Summons filed by the First and Second Applicants on 4th December, 1997 as an abuse of process of the Court.

2. Costs in favour of the First and Second Respondents with certification for overseas Counsel to be borne by the First and Second Applicants.

ALBERT R. PALMER
THE COURT.