Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2)

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Hayne,Crennan,Kiefel,Bell,Gageler JJ
• Judgment Date: 30 October 2013
• Neutral Citation: [2013] HCA 44
• Docket Number: S263/2012
• Date: 30 October 2013

[2013] HCA 44

HIGH COURT OF AUSTRALIA

Hayne, Crennan, Kiefel, Bell and, Gageler JJ

S263/2012

Castle Constructions Pty Limited

Appellant

and

Sahab Holdings Pty Ltd & Anor

Respondents

Castle Constructions Pty Limited v Sahab Holdings Pty Ltd [No 2]

Practice and procedure — Judgments and orders — Power to vacate orders not yet entered — Whether Court should exercise power and withdraw published reasons.

ORDER

1. Application dismissed.

2. The first respondent pay the appellant and the second respondent the costs of the application.

1 Hayne, Crennan, Kiefel, Bell and, Gageler JJ The first respondent (Sahab Holdings Pty Ltd — ‘Sahab’) seeks orders that the Court withdraw its reasons for judgment published 1 on 10 April 2013, reconsider its reasons having regard to a number of identified matters and, if the decision of the Court is affirmed, reconsider that part of its reasons requiring Sahab to pay the costs of the second respondent (the Registrar-General).

2 Sahab's application should be refused. The orders which the Court made on 10 April 2013 should stand. Those orders allowed the appeal to this Court by Castle Constructions Pty Limited (‘Castle’); dismissed Sahab's application for special leave to cross-appeal; ordered Sahab to pay Castle and the Registrar-General the costs of the appeal and of the application for special leave to cross-appeal; and set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 5 April 201and, in their place, ordered that the appeal to that Court be dismissed with costs.

3 The facts and circumstances which gave rise to litigation between Castle, Sahab and the Registrar-General at first instance and on appeal in the Supreme Court of New South Wales, and on appeal and application for special leave to cross-appeal to this Court, are described in the reasons published on 10 April 2013. Put shortly, Sahab is the registered proprietor of land abutting land of which Castle is the registered proprietor. In September 2001, before Sahab became the registered proprietor of its land, Castle had asked the Registrar-General to remove an easement over its land from the Register maintained for the purposes of the Real Property Act 1900 (NSW) (‘the RPA’). Having first notified Sahab's predecessors in title (the owners of what was then the dominant tenement) of his intention to do so, the Registrar-General removed the easement from the folios of the Register relating to both the dominant and the servient tenements. In April 2007, Sahab became the registered proprietor of what had been the dominant tenement. In September 2008, Sahab sought to have the easement restored to the Register. The Registrar-General refused to do so and there followed the litigation that culminated in the proceedings in this Court.

4 Sahab now alleges that the joint reasons delivered by Hayne, Crennan, Kiefel and Bell JJ misapprehended a number of matters. In particular, it alleges that those reasons reveal misapprehension of:

• (a) Sahab's submissions about the effect of the provisions (described as ‘remedial provisions’) of ss 12, 122, 136 and 138 of the RPA;

• (b) the evidence about service of a notice under s 12A of the RPA on the former registered proprietors of Sahab's land;

• (c) the findings of the Court of Appeal about Sahab's standing under s 122 of the RPA to seek review of the Registrar-General's 2001 decision to cancel the easement; and

• (d) the legal character of the Registrar-General's 2001 decision and of the Registrar-General's 2008 decision not to restore the easement to the Register. The former decision was said to be affected by ‘an error in law and a jurisdictional error rendering [it] a nullity’. The latter decision was said to be ‘a failure by the Registrar-General to perform a statutory duty to correct the error made in the 2001 decision’.

5 Sahab further submits that the separate reasons of Gageler J were founded upon misapprehension of the evidence about service of a notice under s 12A of the RPA on the former registered proprietors of Sahab's land and the effect to be given to such a notice.

6 Although Sahab's complaints are directed to the reasons given on 10 April 2013, and Sahab expressly seeks only the recalling of those reasons, the application must be treated as seeking recall of the orders pronounced when the reasons were published and seeking to reopen generally both Castle's appeal and Sahab's application for special leave to cross-appeal.

7 The orders which the Court made on 10 April 2013 have not been perfected. There is no doubt that the Court has power to recall those orders and make other orders in their place 2. The precise bounds of that power may be controversial 3 but, for the purposes of this case, it is not necessary to resolve that controversy.

8 The parties were directed to file and serve written submissions about Sahab's application to reopen the appeal and any application made by Sahab to advance oral argument in support of its application to reopen. Each party has now filed and served its written submissions.

9 Should Sahab's application be entered for oral argument?

10 Sahab submitted that the Court, ‘in considering whether its decision is affected by misapprehension as to law or fact, [would] be assisted by exchange between the Court and each counsel in testing the nature of [the] submitted misapprehensions’ and that the parties would be ‘assisted to understand the outcome of the application [to reopen] by exploration in oral argument’. Castle submitted that the application should be dismissed without oral argument but that, if oral argument were permitted, Sahab should pay Castle's costs of the application. The Registrar-General sought to supplement his written submissions with oral argument.

11 Whether the Court should hear oral argument in respect of Sahab's application to reopen must be decided in light of the issues which Sahab seeks to agitate. They are not issues which warrant entering the application for oral hearing.

12 It is convenient to identify the nature of those issues by reference to the division in opinion in Autodesk Inc v Dyason [No 2]4 about the ambit of this Court's power to recall orders and reopen an appeal.

13 All members of the Court in Autodesk [No 2] accepted 5 that this Court may recall orders which it has made disposing of an appeal if those orders were made against a party who, without fault on the part of that person, has not had an opportunity to be heard as to why those orders should not be made. More particularly, it was accepted 6 that this Court may recall its orders if they were

made on a ground which the person against whom the orders were made had no opportunity to argue 7.

14 Sahab does not submit that it was not given an opportunity to be heard in respect of the issues which it says have been misapprehended by the Court. Indeed many of the grounds it advances in support of its application to reopen proceed from the premise that Sahab put its arguments on the hearing of the appeal and associated application for special leave but, because the arguments were not accepted, the Court must have misapprehended them.

15 This Court divided in opinion in Autodesk [No 2] about whether the jurisdiction to recall this Court's orders extended beyond cases where a party was not given an opportunity to be heard on an issue held to be determinative. Mason CJ took the broadest view of the power to reopen and, with Deane J, dissented as to the outcome in the particular case. Mason CJ said 8 that the exercise of the jurisdiction to reopen should not be confined ‘in a way that would inhibit [the Court's] capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment’. Nonetheless, Mason CJ emphasised 9 that the jurisdiction to reopen ‘is not to be exercised for the purpose of re-agitating arguments already considered by the Court’. Rather, Mason CJ concluded 10 that ‘[w]hat must emerge … is that the Court has apparently...