[2007] NSWCA 42
Forge & Ors v Australian Securities & Investments Commission [No 2]
Notice of motion dismissed.; Parties to file submissions in respect of the claim for indemnity costs.
Catchwords
JUDGMENTS & ORDERS – orders of Court affirmed on appeal – subsisting orders those of appellate Court - RES JUDICATA – order for limited new trial – composite order – partly final partly interlocutory
Cases cited
- Adams v The Herald and Weekly Times Ltd(1934) 50 CLR 1
- Gray v Dalgety & Co Ltd(1916) 21 CLR 509
- Hall v The Nominal Defendant(1966) 117 CLR 423
- R v Marks(1981) 147 CLR 471
- Webb v Hanlon(1939) 61 CLR 313
- Wishart v Fraser(1941) 64 CLR 470
Judgment
- [1]
THE COURT : On 21 December 2006 the claimants applied by notice of motion for orders setting aside the final judgment of Foster AJ of 28 August 2002 and directing that the matter be re-heard de novo by a judge of the Equity Division. The notice of motion comes before this Court for determination on the papers which include the written submissions of the parties.
- [2]
On 7 December 2004 this Court gave judgment in the original appeal. The orders then made included an order that the proceedings be remitted to the Equity Division for hearing on penalty only. The orders have been entered. A further appeal by the appellants, the present claimants, to the High Court was, by majority, dismissed on 5 September 2006 (80 ALJR 1606, [2006] HCA 44).
- [3]
Although the High Court dismissed the appeal from the judgment of this Court, the operative decision is now that of the High Court which has replaced the decision of this Court for all purposes. The orders of the High Court are now the source of any res judicata estoppels: Wishart v Fraser (1941) 64 CLR 470; R v Marks (1981) 147 CLR 471, 476.
- [4]
The decisions of this Court and the High Court were composite in character, partly final, and partly interlocutory. The judgements were final insofar as they dismissed the appellants’ challenge to the decision of Foster AJ and this Court on liability: Adams v The Herald and Weekly Times Ltd (1934) 50 CLR 1. They were interlocutory insofar as this Court ordered a re-hearing of the proceedings limited to the issue of penalty which was affirmed by the High Court: Gray v Dalgety & Co Ltd (1916) 21 CLR 509, 520; Webb v Hanlon (1939) 61 CLR 313, 321, 322, 325; Hall v The Nominal Defendant (1966) 117 CLR 423, 443.
- [5]
The notice of motion is therefore incompetent because the operative order for a re-hearing limited to the issue of penalty is that of the High Court. In any event the notice of motion must be dismissed because the limited scope of the re-hearing is res judicata, the decisions of this Court and the High Court refusing to set aside the judgment on liability being final.
- [6]
The notice of motion is dismissed. Parties to file submissions in respect of the claim for indemnity costs.